ALJDEC decisions subject to certification as final

2022A-06238-NPC-ROC · Registrar of Contractors · 2023-02-04

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Lonestar Drywall LLC,

COMPLAINANT

N V and Sons Builders Inc

License No. ROC 234782,

RESPONDENT

No. 2022A-06238-NPC-ROC

ADMINISTRATIVE LAW JUDGE

DECISION

HEARING: January 17. 2023, 9:00 A.M.

APPEARANCES: Complainant appeared through Aldo Ramos, owner; Respondent appeared through David Appleton, Esq.

ADMINISTRATIVE LAW JUDGE: Roger A. Geddes

_____________________________________________________________________

FINDINGS OF FACT

Background and Procedure

1. N V and Sons Builders, Inc., (Respondent), is the holder of License Number 234782 issued by the Registrar of Contractors (Registrar).

2. On or about August 30, 2022, Lonestar Drywall LLC (Complainant), filed a Complaint against Respondent with the Registrar alleging that Respondent owed Complainant the sum of $10,029.00.

3. The Complaint stated that amount represented the unpaid sum due for the payment of certain individuals that worked for Respondent.

4. Respondent answered contending it never hired the individuals in question and that it did not owe any sum to Complainant.

5. On September 22, 2022, the Registrar issued a Citation for Alleged Violation of A.R.S. § 32-1154(A)(10) for the alleged failure by Respondent to pay monies in excess of $750.00 when due for materials or services rendered in connection with Respondent’s operations as a contractor.

6. The Registrar referred the matter to the Office of Administrative Hearings, an independent state agency, for an evidentiary hearing which was noticed to be held on January 17, 2023, at 9:00 A.M.

7. At the January 17, 2023, hearing, Complainant presented the testimony of Aldo Ramos; Respondent presented the testimony of Niko Vala, owner. Respondent submitted Exhibits 1 - 9 on the day of the hearing which were not available for the Tribunal’s review at the time of the hearing. Complainant submitted no exhibits.

8. Aldo Ramos testified on behalf of Complainant, as herein relevant to the Citation, that Respondent asked him to help with a job but that he was busy so he instead helped him out by lining up some workers for that job. He further testified that he lined up the workers that worked on Respondent’s job but that Respondent did not pay several of the workers. He said he, Complainant, then paid the workers because he felt he had an obligation to do so because he was the one that recruited them and he now claims the amount he paid the workers is an unpaid amount due for materials or services rendered in connection with the Respondent’s operations as a contractor. He admitted that he had no contract with Respondent, that he had no agreement that Respondent would reimburse him, that the workers were not Complainant’s employees, and that Complainant itself did no work for Respondent.

9. Complainant offered no time sheets or documentary proof of payment for the workers despite his testimony that there had been time sheets on the job. Instead, he only offered an invoice submitted to Respondent appearing to be in the amount of $21,024.00, not $10,029.00 as claimed in the Complaint, listing the workers and the alleged total time they worked and hourly rates.

10. Niko Valaj testified on behalf of Respondent, as herein relevant to the Citation, that he did not ask Complainant for the workers, that he did not have a contract with Complainant, and that Complainant did not do any work for Respondent.

CONCLUSIONS OF LAW

1. The Registrar has jurisdiction over this matter, pursuant to A.R.S. § 32-1101, et seq., which authorizes the Registrar to impose disciplinary sanctions against licenses for violations of A.R.S. § 32-1154.

2. The burden of proof at an administrative hearing falls to the party asserting a claim, right, or entitlement and the standard of proof on all issues in these matters is by preponderance of the evidence. See Arizona Administrative Code Rule 2-19-119.

3. To warrant such sanctions by the Registrar, Complainant must demonstrate by a preponderance of the evidence that Respondent violated the statutory section cited. Proof by a “preponderance” means that “the evidence is sufficient to persuade the finder of fact that the proposition is more likely true than not.” In re: Arnold and Baker Farms, 177 B.R. 648 (9th Cir. BAP (Ariz.) 1994). See also Culpepper v. State of Arizona, 187 Ariz. 431, 930 P.2d 508 (App. 1996). It is “evidence which is of greater weight or more convincing than the evidence which is offered in opposition to it; that is, evidence which as a whole shows that the fact sought to be proved is more probable than not.” BLACK’S LAW DICTIONARY 1182 (Rev. 6th ed. 1990).

4. A.R.S. § 32-1154(A)(10) included among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license:

[f]ailure by a licensee or agent or official of a licensee to pay monies in excess of $750 when due for materials or services rendered in connection with the licensee’s operations as a contractor unless the licensee proves that the licensee lacks the capacity to pay and has not received sufficient monies as payment for the particular construction work project or operation for which the services or materials were rendered or purchased.

5. A.R.S. § 32-1154(A)(10). Complainant has not satisfied its burden to demonstrate that Respondent has failed to pay Complainant the amount of $10,029.00 or any other sum that had become due for materials or services rendered in connection with Respondent’s operations as a contractor. Complainant admitted that Complainant and Respondent had no contract between them for work, that Complainant did no work for Respondent, and that there was no agreement that Respondent would reimburse Complainant for paying the workers. It is the individual workers that would have had such a claim, not Complainant.

6. However, even if Complainant could bring this proceeding on behalf of the individual workers, Complainant did not meet its burden due to its failure to provide any workers as witnesses or any statements from them, its failure to provide any time sheets, or its failure to provide any documentary proof of payment to the workers.

7. Respondent did not contend nor did it present any evidence that it lacked the capacity to pay Complainant or that it had not received sufficient monies as payment for the project for which Complainant’s services were rendered.

8. Respondent’s request for an award of attorney’s fees and costs is denied. The Tribunal is not aware of any authority nor did Respondent present any authority to support such an award in this type of proceeding.

RECOMMENDED ORDER

Based on the foregoing, it is recommended that on the effective date of this Order, that the Citation and the Complaint in this matter be dismissed.

In the event of certification of this Administrative Law Judge Decision by the Director of the Office of Administrative Hearings, the effective date of the Order will be five days from the date of the certification.

Done this day, February 6, 2023.

/s/ Roger Geddes

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors

Complainant

Lonestar Drywall LLC

[email redacted]

Respondent

David Appleton, Esq.

610 E. Bell Rd.--#2-114

Phoenix, AZ 85022

[email redacted]

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By: OAH Staff

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