ALJDEC - Licensing
2023A-01426-NPC-ROC · Registrar of Contractors · 2023-08-08
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
Gilbert Tiger Enterprise Inc.,
COMPLAINANT
v.
Heathen LLC
License No. ROC 335557,
RESPONDENT
No. 2023A-01426-NPC-ROC
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: July 20, 2023
APPEARANCES: Charles Donald Hibbard, Jr. appeared on behalf of Complainant. Dewy Horton, Andrea Blanton, Charles Ramirez, were witnesses on behalf of Complainant. Rocky Spencer appeared on behalf of Respondent. Aaron Shelton was a witness on behalf of Respondent.
ADMINISTRATIVE LAW JUDGE: Brian Del Vecchio
FINDINGS OF FACT
Heathen LLC (Respondent) is the holder of License No. 335557 issued by the Registrar of Contractors (Registrar).
On or about February 27, 2023, Gilbert Tiger Enterprise Inc. (Complainant) filed a Complaint against Respondent with the Registrar alleging that Respondent had failed to pay Complainant the sum of $32,096.81 for construction services and materials.
The parties were unable to resolve their differences, and Complainant requested an administrative hearing. The Registrar then issued a Citation for an alleged violation of Ariz. Rev. Stat. § 32-1154(A)(10).
There was no formal contract between the parties, rather there were loosely defined services to be provided by Complainant hand written on a paper signed by neither party.
Complainant submitted an invoice for a total of $55,139.81. The invoice itemized several services and material reimbursement line items. Said invoice also indicated Complainant received a payment of $23,043.00 leaving an outstanding balance of $32,096.81. Complainant testified Respondent did not have the necessary membership with certain vendors. Complainant purchased several materials on behalf of Respondent and was never reimbursed. The itemized invoice listed the following:
Description
Amount
ADA Ramps
6,000.00
Infill cut out 4x10
800.00
Install 5 painted doors with bolts supplied by other
2,500.00
Cost of supplying painted doors
6,362.44
Reset 5 painted doors due to wrong bolts installed which caused doors not to fit correctly
2,500.00
Framing for Laundry & Shower
4,000.00
Drywall doors, laundry shower
1,900.00
Had to R & R Drywall due to damage
1,500.00
Replace counter tops
400.00
1 exterior door [header], framing and install
1,000.00
Drywall repairs
200.00
Patch back interior restrooms
2,000.00
Wood trim at exterior R & R
1,650.00
Added wood trim not on contract
1,600.00
Move 2 walls
1,000.00
Install Insulation - 10'3" supplied by owner
1,250.00
37' of additional 2x4 framing and drywall
4,200.00
Extra cost for stain grade doors
2,312.40
Build Wall @ shower - small wall - drywall, tape , texture
1,500.00
Install backing to shower grain board
275.00
Extra days spent to do extra work above contract (lodging etc)
1,000.00
Additional 6 rolls of R19 insulation & 18 sheets of 4'x12'x1/2" drywall supplied,
screws, tape and mud
2,000.00
GC/OP
9,189.97
Respondent submitted two invoices of monies allegedly paid to Complainant. One of Respondent’s invoices contained arithmetic errors in the total amount calculation. The invoice total listed $17,690.00, however, the actual total was $27,680.00 with $3,790.00 charged back for “materials provide[d] by us.” The combined total of all invoices supplied by Respondent was $33,580.00, less the chargeback of $3,790.00, resulting in a total of $29,790.00.
Andrea Blanton testified Complainant received $23,043.00 from Respondent towards the total invoice of $55,139.81, leaving a balance due of $32,096.81.
Dewy Horton and Charles Ramirez substantiated the work and material purchased on Complainant’s invoice.
Aaron Spencer testified 13 line items in Complainant’s 23 itemized invoice matched Respondent’s combined invoices.
Respondent testified Complainant was paid for all services and reimbursed for all materials, but provided no evidence the reimbursements were paid.
Respondent did not assert that it lacked the capacity to pay the amount Complainant asserted was due.
CONCLUSIONS OF LAW
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 a preponderance of the evidence.
A preponderance of the evidence is “such proof as convinces the trier of fact that the contention is more probably true than not.”
Ariz. Rev. Stat. § 32-1154(A)(10) includes 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.
The evidence established that Respondent owed a total of $32,096.81 for reimbursement of painted doors, drywall repairs, and reimbursement for change of materials, other construction materials, services, and labor costs.
Respondent argued the $23,043.00 payment encompassed all services and materials owed to Complainant; however, assuming Respondent’s invoices were correct, the total which should have been paid was $29,790.00. Furthermore, Respondent’s invoices conflicted with the testimony of its witnesses. Rocky Spencer testified Complainant paid for several expensive doors and other materials which were never reimbursed. None of which were line items on said invoices.
Respondent failed to establish by a preponderance of the evidence that it lacked the ability to pay Complainant for the work performed.
Therefore, Complainant established that Respondent violated Ariz. Rev. Stat. § 32-1154(A)(10) by failing to pay Complainant $32,096.81 for services and materials rendered in connection with Respondent’s contracting business.
Based upon Respondent’s violation of the provisions of Ariz. Rev. Stat. § 32-1154(A)(10), grounds exist to impose discipline against Respondent’s license
RECOMMENDed order
Based on the foregoing, it is recommended that the Registrar suspend Respondent’s License No. 335557 issued by the Registrar until it has provided to the Registrar, and the Registrar has accepted, documents that establish that it has paid Complainant $32,096.81 in certified funds.
It is further recommended that when and if the Registrar receives and accepts Respondent’s evidence that it has paid Complainant $32,096.81 in certified funds, the Registrar may close the Complaint in Case No. 2023-01426.
Pursuant to A.R.S. § 41-1092.08(I), the licensee may accept the Administrative Law Judge Decision by advising the Office of Administrative Hearings in writing not more than ten (10) days after receiving the decision. If the licensee accepts the Administrative Law Judge Decision, the decision shall be certified as the final decision by the Office of Administrative Hearings.
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 forty (40) days from the date of that certification.
Done this day, August 8, 2023.
/s/ Brian Del Vecchio
Administrative Law Judge
Transmitted by either mail, e-mail, or facsimile to:
Martín Quezada, Director
Registrar of Contractors
Rocky Spencer
Heathen LLC
[email redacted]
Charles Donald Hibbard, Jr.
Gilbert Tiger Enterprise Inc
[email redacted]
By: OAH Staff