ALJDEC decisions subject to certification as final

2022A-05730-NPC-ROC · Registrar of Contractors · 2023-01-03

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Carefree Floors Inc,

COMPLAINANT

Forte Homes Construction LLC

License No. ROC 110581,

RESPONDENT

No. 2022A-05730-NPC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: December 15, 2022

APPEARANCES: Brian Kunkel appeared via Google Meet on behalf of Complainant Carefree Floors Inc. Respondent Forte Homes Construction LLC was represented by Claudio E. Iannitelli, Esq. who appeared via Google Meet.

ADMINISTRATIVE LAW JUDGE: Adam D. Stone

_____________________________________________________________________

FINDINGS OF FACT

On September 20, 2022, the Registrar of Contractors (“ROC”) issued a Notice of Hearing on Contested Case setting the above-captioned matter for hearing on December 15, 2022, at the Office of Administrative Hearings, and independent state agency.

The Notice of Hearing shows that the hearing was being conducted on the charges made in the complaint and citation that were served on Respondent Forte Homes Construction LLC on July 27, 2022.

Through the citation and Notice of Hearing, ROC alleges that Respondent may have violated Ariz. Rev. Stat. section 32-1154(A)(10).

Respondent holds License No. 110581 issued by ROC. John Cochran was Respondent’s qualifying party.

Complainant was Carefree Floors Inc.

In October 2021, Respondent contacted with Complainant to install floors and shower on the “Black Cross project.” There was no formal discussion as to the total cost.

On or about March 1, 2022, Complainant sent an invoice for $29,672.50.

On or about April 8, 2022, Respondent paid $21,304.00.

The parties were unable to resolve the matter, Complainant filed a complaint with ROC seeking $4,553.50.

At hearing, Mr. Kunkel testified that there had been a significant increase in the costs for materials and the old prices used on the previous dealings with the parties in 2019 were outdated.

Mr. Kunkel also testified that the charges to prepare for the city inspection were appropriate, and that the reason they were included in this invoice and not previous invoices, was because the other projects were not in Scottsdale, thus did not require an inspection.

During cross-examination, Mr. Kunkel admitted to sending an e-mail to Respondent on April 20, 2022, stating, “just pay what you think you owe.” Mr. Kunkel also testified that he disagreed that he over-charged Respondent for work performed and that he was not allowed to go back and measure to prove the same.

Respondent presented the testimony of Cliff Wiegel and offered 12 exhibits into the record.

Mr. Wiegel testified that he was currently employed with Respondent, but had done business in the past with Complainant while he was at a different company.

Mr. Wiegel testified that he had contracted with Complainant in the fall of 2021 on the “Perry project”, and thus assumed that those prices would be used for the “Black Cross project”.

Further, Mr. Wiegel testified that he disagreed with not only the prices contained in the March 1, 2022 invoice, but the quantities as well. He testified that he measured what was installed, and offered to have Jose, Complainant’s project manager, come and re-measure. Mr. Wiegel testified he found many discrepancies which caused him to adjust the payment accordingly.

Also Mr. Wiegel testified that he did not believe he should be charged $600.00 for the “inspection” nor $120.00 for the change in grout, as there was no change to the grout.

CONCLUSIONS OF LAW

Unless otherwise provided by law, a party asserting a claim, right, or entitlement bears the burden of proof; a party asserting an affirmative defense has the burden of establishing the affirmative defense. The standard of proof on all issues in this matter is that of a preponderance of the evidence. Ariz. Admin. Code § R2-19-119.

“At a hearing on an agency action to suspend, revoke, terminate or modify on its own initiative material conditions of a license or permit, the agency has the burden of persuasion.” Ariz. Rev. Stat. § 41-1092.07(G)(2).

A preponderance of the evidence is:

The greater weight of the evidence, not necessarily established by the greater number of witnesses testifying to a fact but by evidence that has the most convincing force; superior evidentiary weight that, though not sufficient to free the mind wholly from all reasonable doubt, is still sufficient to incline a fair and impartial mind to one side of the issue rather than the other.

Black’s Law Dictionary 1373 (10th ed. 2014).

Statutes should be interpreted to provide a fair and sensible result. Gutierrez v. Industrial Commission of Arizona, 226 Ariz. 395, 249 P.3d 1095 (2011)(citation omitted); State v. McFall, 103 Ariz. 234, 238, 439 P.2d 805, 809 (1968) ("Courts will not place an absurd and unreasonable construction on statutes.").

“Statutes shall be liberally construed to effect their objects and to promote justice.” Ariz. Rev. Stat. § 1-211(B).

The purpose of the Registrar’s licensing statutes is to protect the public from unscrupulous, unqualified, and financially irresponsible contractors. See Aesthetic Property Maintenance v. Capital Indem. Corp., 183 Ariz. 74, 900 P. 2d 1210 (1995).

Among the grounds for suspension or revocation of a contractor’s license is a “[f]ailure by [the] licensee . . . to pay monies in excess of seven hundred fifty dollars when due for materials or services rendered in connection with the licensee’s operations as a contractor when the licensee has the capacity to pay or, if the licensee lacks the capacity to pay, when the licensee has received sufficient monies as payment for the particular construction work project or operation for which the services or materials were rendered or purchased.” Ariz. Rev. Stat. § 32-1154(A)(10).

The preponderance of the evidence shows that Respondent owes no further monies to Complainant. First, Respondent relied on the prices from the “Perry project” completed and billed in September 2021, when it asked Complainant to work on the “Black Horse project” just about one month later. If prices had increased, Complainant should have fully informed Respondent of the same, as it was reasonable for Respondent to rely on the prices it had paid just a month earlier. The tribunal also believes that there was no persuasive evidence demonstrating there was a change in the grout color, and that this was not a valid charge.

However, the tribunal is persuaded by the $600.00 charge for the three shower inspections. It logically follows that Respondent would not have seen these charged before because the other projects were outside of the city of Scottsdale, yet this project was. If Complainant provided a service to ensure that its work would pass inspection, it should be paid for the same. Unfortunately for Complainant however, this amount is less than the $750.00 threshold under the statute for discipline.

The preponderance of the evidence shows that Respondent has not violated section 32-1154(A)(10), and the amount owed is less than $600.00.

RECOMMENDED ORDER

IT IS RECOMMENDED that the complaint against Forte Homes Construction be closed and that ROC take no further action.

In the event of certification of the Administrative Law Judge Decision by the Director of the Office of Administrative Hearings, the effective date of the Order is thirty days after the date of that certification.

-54864001

001

-137160-45720000Done this day, January 3, 2023.

/s/ Adam D. Stone

Administrative Law Judge

Transmitted electronically or by mail to:

Jeffrey Fleetham, Director

Registrar of Contractors

Claudio E. Iannitelli, Esq

IANNITELLI MARCOLINI P.C.

5353 N 16th St Ste 315

Phoenix, AZ 85016-3227

[email redacted]

Carefree Floors Inc

6703 E Ranch Rd

Cave Creek, AZ 85331

[email redacted]

By Miranda Alvarez

Legal Secretary

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001

-137160-45720000