ALJDEC - Licensing
2023A-01711-NPC-ROC · Registrar of Contractors · 2023-06-08
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
FCCO, LLC,
COMPLAINANT,
v.
ADC 1, LLC
License No. ROC 341735,
RESPONDENT.
No. 2023A-01711-NPC-ROC
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: May 31, 2023
APPEARANCES: Joshua Jacob appeared on behalf of Complainant FCCO, LLC. Peter Dewitz appeared on behalf of Respondent ADC 1, LLC.
ADMINISTRATIVE LAW JUDGE: Sondra J. Vanella
FINDINGS OF FACT
ADC 1, LLC (“Respondent”) is the holder of License No. 341735 issued by the Arizona Registrar of Contractors (“Registrar”). Peter Dewitz is a Member of Respondent.
On or about February 8, 2023, FCCO, LLC (“Complainant”) filed a Complaint against Respondent with the Registrar alleging that Respondent had failed to pay Complainant the sum of $6,173.72 for plumbing work performed at a home owned by Len Hack.
The parties were unable to resolve the dispute. The Registrar issued a Citation against Respondent for its alleged violation of A.R.S. § 32-1154(A)(10).
The matter was set for administrative hearing before the Office of Administrative Hearings on May 31, 2023, at 9:00 a.m. On the date and time set for hearing, Joshua Jacob appeared on behalf of Complainant. Peter Dewitz appeared on behalf of Respondent.
Mr. Jacob testified that Complainant was contacted by Respondent’s employee, Auggie Saucedo, to schedule work to be performed at the Hack residence with “open labor and materials with an upcharge.” There was no written contract for the project. Mr. Jacob testified that Complainant was paid for its first week of work, however, did not receive payment for the second week of work. Mr. Jacob testified that he had no interaction with the homeowner until the work was well underway.
Mr. Jacob testified that he did not meet with the homeowner, Mr. Hack, and that all of his communications regarding the scope of work, price therefor, and scheduling, were with Mr. Saucedo.
Mr. Jacob referenced several text messages and emails from Respondent that corroborated his testimony. Mr. Jacob submitted copies of those exchanges and sent copies to Mr. Dewitz.
The first text message that Mr. Jacob received from Mr. Saucedo was on November 15, 2022, asking if Mr. Jacob does work in Scottsdale and whether he was available to meet at the jobsite the following day.
On November 23, 2022, Mr. Saucedo sent Mr. Jacob a text message reminding him about a “recirculating pump,” asking if “sheetrock patches” could begin, and whether Mr. Jacob needed additional time “to replace shark bites.” When Mr. Jacob responded that he required additional time, Mr. Saucedo responded, “Ok I will hold them off.”
On November 25, 2022, Mr. Jacob texted Mr. Saucedo regarding the work that had been performed up to that point and the schedule for the remainder of the work. Mr. Saucedo replied, “[t]hanks for all your hard work!!! It’s looking really good.”
On November 27, 2022, Mr. Saucedo texted Mr. Jacob, “. . . Thank you so much for your hard work. I really do appreciate your professionalism and timeliness. I sent the invoice to Len and Pete, and hope to have you paid tomorrow or at the latest Monday.” Mr. Saucedo also asked for Mr. Jacob to return to the jobsite to raise the condensate line.
On November 30, 2022, Mr. Saucedo texted Mr. Jacob, “Josh are you able to track. Change directions. Meaning. Originally we had you on site to improve the time of hot water to fixture. Demo as needed. Remove shark bites. Bathroom sink. Add ons [] would be Recirculating pump[,] [i]nsulation, duct work time to trouble shoot hot water. And anything else you can think of.”
Mr. Jacob responded to Mr. Saucedo that he could perform the work and provided a breakdown of labor and materials. Mr. Jacob continued to provide Mr. Saucedo communication regarding the work that Complainant was performing on the project.
On December 2, 2022, Mr. Saucedo responded, “Good morning, Josh. I am going to try and make it out there today while you’re still on site, but if I don’t and you are ready to leave please reach out to me as I want to make sure that you’ve been paid in full. Thanks again.”
On January 9, 2023, Mr. Dewitz responded to an email from Mr. Jacob, stating, “I will be in town tomorrow and will get this resolved and paid right away.”
On January 20, 2023, Mr. Jacob texted Mr. Dewitz regarding payment for the project. Mr. Dewitz responded, “Hi Joshua, I have been working on this and gone over it with Len, Auggie and another project manager on our staff. I’m in Atlanta on business returning early tomorrow morning. I will put together an email and have it to you by Monday afternoon.”
Mr. Jacob submitted confirmation that all of the invoices for the project were issued to Mr. Saucedo.
Mr. Dewitz testified that his friend and associate, Len Hack, approached Respondent regarding a remodel project that had been performed at Mr. Hack’s residence that was in need of corrective work. Mr. Dewitz testified that Mr. Hack asked him for a plumbing contractor recommendation, and Respondent contacted Complainant. Mr. Dewitz testified that as a favor to Mr. Hack, given his relationship with Mr. Dewitz, Mr. Saucedo brought Mr. Jacob to the residence because Mr. Hack was out of town. Mr. Dewitz testified that he and Mr. Saucedo met Mr. Jacob to describe the issues Mr. Hack had been experiencing with his hot water. Mr. Dewitz testified that while Mr. Hack was out of town, Respondent provided Complainant access to the jobsite.
Mr. Dewitz testified that Respondent received Complainant’s first invoice and Respondent forwarded the invoice to Mr. Hack to pay as Respondent had no contractual relationship with either Complainant or Mr. Hack. Mr. Dewitz testified that Mr. Hack, not Respondent, paid Complainant’s first invoice.
Mr. Dewitz testified that Mr. Hack continued to experience plumbing issues and Complainant made multiple trips to the jobsite to perform work. Upon receipt of the second invoice, which is the subject of the instant Complaint, Mr. Dewitz forwarded it to Mr. Hack for payment, as he had done with the first invoice.
Mr. Dewitz acknowledged that he told Mr. Jacob that he would receive payment. However, when Mr. Dewitz contacted Mr. Hack to pay Complainant, Mr. Hack asserted that the plumbing issue had not been resolved by Complainant, and therefore, he would not pay the invoice. Mr. Dewitz testified that Mr. Hack was compelled to hire another plumbing contractor to rectify the issue with the plumbing.
Mr. Dewitz asserted that Respondent “connected” Mr. Hack to Complainant and that while Mr. Hack was out of town, Mr. Saucedo facilitated Complainant’s access to the jobsite. Mr. Dewitz further asserted that Respondent did not receive any compensation from Mr. Hack or any other source, and Respondent did not have a contract with either Mr. Hack or with Complainant.
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 this matter is by a preponderance of the evidence. Respondent bears the burden of proof to establish affirmative defense(s) by the same evidentiary standard.
A preponderance of the evidence is “such proof as convinces the trier of fact that the contention is more probably true than not.”
A.R.S. § 32-1154(A)(10) includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license:
Failure 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.
Emphasis added.
A.R.S. § 32-1101(3) defines "Contractor" as follows:
(a) Is synonymous with the term "builder" and means any person, firm, partnership, corporation, association or other organization, or a combination of any of them, that, for compensation, undertakes to or offers to undertake to, purports to have the capacity to undertake to, submits a bid or responds to a request for qualification or a request for proposals for construction services to, does himself or by or through others, or directly or indirectly supervises others to:
(i) Construct, alter, repair, add to, subtract from, improve, move, wreck or demolish any building, highway, road, railroad, excavation or other structure, project, development or improvement, or to do any part thereof, including the erection of scaffolding or any other structure or work in connection with the construction.
(ii) Connect such a structure or improvements to utility service lines and metering devices and the sewer line.
(iii) Provide mechanical or structural service for any such structure or improvements.
(b) Includes subcontractors, specialty contractors, floor covering contractors, hardscape contractors and consultants who represent that they are able to supervise or manage a construction project for the property owner's benefit, including hiring and firing specialty contractors, scheduling work on the project and selecting and purchasing construction material.
Emphasis added.
In this case, the evidence of record failed to establish that Respondent received compensation from Mr. Hack, or any source, to supervise or manage any work for Mr. Hack’s benefit, including scheduling work on the project. In order to be found in violation of A.R.S. § 32-1154(A)(10), Respondent would have to be found to have been acting in the capacity of a contractor, which requires that Respondent be compensated. While Complainant established that Respondent assisted with scheduling and access, Complainant did not establish that Respondent received compensation for such from Mr. Hack. Consequently, Complainant failed to establish that Respondent acted in the capacity of a contractor. Therefore, the Administrative Law Judge concludes that Complainant failed to establish that Respondent violated A.R.S. § 32-1154(A)(10).
Based upon Complainant’s failure to establish Respondent’s violation of the provisions of A.R.S. § 32-1154(A)(10), grounds do not exist to impose discipline against Respondent’s license.
RECOMMENDed order
Based on the foregoing,
IT IS ORDERED that Case Number 2023-01711 is dismissed.
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, June 8, 2023.
/s/ Sondra J. Vanella
Administrative Law Judge
Transmitted by either mail, e-mail, or facsimile to:
Martín Quezada, Director
Registrar of Contractors
[email redacted]
ADC 1, LLC
[email redacted]
FCCO, LLC
[email redacted]
By: OAH Staff