ALJDEC decisions subject to certification as final

2022A-07473-NPC-ROC · Registrar of Contractors · 2022-12-23

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Canyon State Barricade Service LLC,

COMPLAINANT

Arizona Native Builders LLC

License No. ROC 313283,

RESPONDENT

No. 2022A-07473-NPC-ROC

ADMINISTRATIVE LAW JUDGE

DECISION

HEARING: December 8, 2022, 9:00 A.M.

APPEARANCES: Complainant appeared through its General Manager, Larry Herrera; Respondent appeared through its owner, George Alper.

ADMINISTRATIVE LAW JUDGE: Roger A. Geddes

_____________________________________________________________________

FINDINGS OF FACT

Background and Procedure

1. Arizona Native Builders, LLC (Respondent), is the holder of License Number 313283 issued by the Registrar of Contractors (Registrar).

2. On or about August 30, 2022, Canyon State Barricade Service, LLC, filed a Complaint against Respondent with the Registrar alleging that Respondent owed Complainant the sum of $6,605.60.

3. The Complaint stated that amount represented the unpaid sum due for providing traffic control street and pedestrian barricades for Respondent’s new construction project.

4. Respondent answered contending it only owed Complainant at most $2,600.00.

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 December 8, 2022, at 9:00 A.M.

7. At the December 8, 2022, hearing, Complainant presented the testimony of General Manager Larry Herrera; Respondent presented the testimony of George Alper, owner, and Mike Stark, Superintendent.

8. The Tribunal received and admitted Respondent’s exhibit numbers 1 - 10. Complainant submitted no exhibits.

9. Larry Herrera testified on behalf of Complainant, as herein relevant to the Citation, that he provided Respondent with two invoices, the first dated July 20, 2022, in the amount of $2,644.41, and the second dated July 25, 2022, in the amount of $3,961.19, which collectively included a $625.00 daily charge for 8 days use of barricades including an ADA walkway (totaling $5,000.00), a $110.00 hourly labor charge (totaling $1,017.50), and $65.00 for a design submittal. (Respondent’s Exhibit 9). He stated there was no written contract, but that he verbally informed George Halper of the daily rental charge and the labor charges. He also stated he advised Mike Stark, Respondent’s Superintendent, of the increased daily cost for providing an ADA walkway.

10. George Alper testified on behalf of Respondent, as herein relevant to the Citation, that he asked Complainant several times as early as July 13, 2022, for a bid or pricing for the barricades. (Respondent’s Exhibit 5). He stated the barricades were brought to the construction site on July 18, 2022, and the only response he received from Complainant was an email that day in the evening (the day of and after the barricades were delivered) stating “325$ [sic] daily...if the city comes back with a ADA walkway, then it goes up....” (Respondent’s Exhibit No. 6). He stated there was never any mention from Complainant of labor charges, or what the additional cost there would be for the ADA walkway. He further stated and the evidence reflected he received the invoices with itemized prices and a breakdown of the services on July 30, 2022, after Complainant had completed its services. (Respondent’s Exhibit 6).

11. Mike Stark testified on behalf of Respondent, as herein relevant to the Citation, that he had no conversations with Complainant about costs of the barricades or walkway and denied he was ever told about increased cost for an ADA walkway. He further testified that a city representative visited the job site to inspect days after the first barricades were brought. He stated the city then required an ADA walkway which was then only placed by Complainant for half of the eight days that barricades were provided.

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 satisfied its burden to demonstrate that Respondent has failed to pay Complainant the amount of $3,800.00 that had become due for materials or services rendered in connection with Respondent’s operations as a contractor. Complainant has not provided sufficient evidence to support a finding that any additional sums are due. The testimony of the parties as to what verbal representations were made is completely in conflict. The only document produced evidencing charges prior to the billing is an email indicating the charge to be $325.00 a day and more if a walkway was required. There is no documentary evidence to show that there was to be a charge for labor and it was reasonable for Respondent to believe that a labor charge for delivery and setup for the barricades was included in the daily rental charge. Thus, the Tribunal finds that Complainant is owed for use of the barricades at $325.00 per day for 8 days, or $2,600.00.

6. In addition, given that Respondent was advised that there would be an unspecified additional charge for an ADA walkway if the walkway was required by the city, the Tribunal is persuaded that Respondent should be responsible for paying for the ADA walkway. However, Complainant testified that the ADA walkway was present the entire eight days, which is inconsistent with his email. The email sent after the barricades were delivered suggests that the ADA walkway had not yet been delivered. (Respondent’s Exhibit No. 9). The Tribunal finds the testimony of Mr. Stark to be credible that the walkway was not present the first four days of the job. While Complainant testified the driver tickets would show when the walkway was delivered, he did not provide those as evidence.

While Respondent contended Complainant’s daily charges of $300 for the walkway was unreasonable, the evidence presented as to what other vendors might have charged for the same service was insufficient to establish that it was unreasonable. Further, while the Tribunal is convinced that Respondent was not informed in advance that the ADA walkway would be an additional $300 per day, the Tribunal is also convinced that even had Respondent been informed of such a price at that time, given that the barricades were needed that very day and for only the next four days at most, Respondent would have had no choice but to accept that sum. Mr. Alper testified that Respondent had not been able to find another vendor and that Complainant was its last choice. Thus, the Tribunal finds that Complainant is owed for use of the walkway at $300.00 per day for 4 days, or $1,200.00.

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. In this matter, Respondent failed to pay the amount of $3,800.00 to Complainant for materials or services rendered in connection with Respondent’s operations as a contractor. Complainant has established that Respondent’s license should be disciplined for a violation of A.R.S. § 32-1154(A)(10).

RECOMMENDED ORDER

Based on the foregoing, it is recommended that on the effective date of this Order, Arizona Native Builders, LLC’s, License Number 313283 is suspended until the Registrar receives and accepts written verification that Arizona Native Builders, LLC, has paid $3,800.00 to Complainant in certified funds.

It is further recommended that if and when the Registrar receives and accepts Respondent’s evidence that it has paid Complainant $3,800.00 in certified funds, the Registrar may close this Complaint.

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, December 23, 2022.

/s/ Roger Geddes

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors-54864001

001

-137160-45720000

Canyon State Barricade Service LLC,

[email redacted]

Arizona Native Builders LLC

[email redacted]

-54864001

001

-137160-45720000

By Miranda Alvarez

Legal Secretary

-54864001

001

-137160-45720000