ALJDEC decisions subject to certification as final

2022A-06394-NPC-ROC · Registrar of Contractors · 2023-01-30

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Az Painting & Consulting LLC,

COMPLAINANT

Lennar Multifamily Builders LLC

License No. ROC 315234,

RESPONDENT

No. 2022A-06394-NPC-ROC

[PROPOSED] ADMINISTRATIVE LAW JUDGE DECISION

HEARING SCHEDULED: February 2-3, 2023

APPEARANCES: Kyle O’Dwyer of Fortify Legal Services appeared on behalf of Complainant Az Painting & Consulting LLC. Mark Molique of Molique Law PLLC appeared on behalf of Respondent Lennar Multifamily Builders LLC.

ADMINISTRATIVE LAW JUDGE: Tammy L. Eigenheer

_____________________________________________________________________

FINDINGS OF FACT

The Arizona Registrar of Contractors (“Registrar”) issued License No. 315234 to Respondent.

On or about August 2, 2022, the Registrar received a Complaint against Respondent from Complainant alleging Respondent failed to pay Complainant $27,767.07 related to 16 “Change Orders T/M submitted $13,860” (“TM Invoices”) and “Change Orders for lift Equipment $13860” (“Lift Invoices”). The TM Invoices and Lift Invoices were all for work performed prior to June 25, 2022.

The Registrar investigated the complaint.

On or about September 1. 2022, the Registrar issued a Citation against Respondent charging a possible violation of A.R.S. § 32-1154(A)(10).

The matter was scheduled to proceed to an administrative hearing on or about February 2-3, 2023.

On or about January 23, 2023, Respondent filed a motion to dismiss the complaint with prejudice (“Motion”) showing that Complainant had signed an Unconditional Lien Waiver and Release (“Unconditional Release”) on or about August 13, 2022, for all work completed prior to June 25, 2022.

On or about January 25, 2023, this Tribunal ordered Complainant to file a response to the Motion by January 30, 2023.

On or about January 27, 2023, Complainant filed a response agreeing to dismiss the complaint and Respondent filed a reply the same day.

The parties reached an agreement and, on or about January 30, 2023, the parties filed a Stipulation to Dismiss with Prejudice with Preclusive Effect agreeing for the Administrative Law Judge to enter a decision in favor of Respondent.

CONCLUSIONS OF LAW

This matter lies within the Registrar’s jurisdiction.

Complainant bears the burden of proof, by a preponderance of the evidence, to establish that Respondent owed money in excess of $750.00 and that the amount was due.

“A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.” A preponderance of the evidence is “[t]he 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.”

The evidence was uncontroverted that the TM Invoices and Lift Invoices were for work performed prior to June 25, 2022 and that Complainant signed the Unconditional Release on August 13, 2022. Thus, Complainant released any right to payment for the TM Invoices and Lift Invoices.

After review of all the evidence, the Tribunal concludes that Complainant has failed to prove by a preponderance of the evidence that any money was due Complainant by Respondent for the TM Invoices and Lift Invoices.

RECOMMENDED ORDER

Based on the foregoing, it is recommended that on the effective date of the Registrar’s final order, Complainant’s complaint be denied and the complaint dismissed.

IT IS ORDERED, vacating the hearing for this matter set for February 2-3, 2023.

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 will be 40 days from the date of that certification.

-54864001

001

-137160-45720000Done this day, January 30, 2023.

/s/ Tammy L. Eigenheer

Administrative Law Judge

Transmitted electronically or by mail to:

Jeffrey Fleetham, Director

Registrar of Contractors

Kyle O'Dwyer, Esq.

Fortify Legal Services

[email redacted]

Mark Molique

Molique Law, PLLC

[email redacted]

By: OAH Staff-54864001

001

-137160-45720000