DO NOT USE AS FINAL DECISION
2023A-03699-NPC-ROC · Registrar of Contractors · 2023-06-28
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
Southwest Roofing & Cooling LLC,
COMPLAINANT
v.
4 Powers Contracting LLC
DBA: ACC
License No. ROC 322133,
RESPONDENT
No. 2023A-03699-NPC-ROC
ADMINISTRATIVE LAW JUDGE
DECISION
HEARING: June 9, 2023
APPEARANCES: Erick Solis appeared on behalf of Complainant, Southwest Roofing & Cooling LLC. Gabriel Solis testified as a witness on behalf of Complainant. Barry Olson, Esq. represented 4 Powers Contracting LLC. Wesley Splawn testified as a witness on behalf of Respondent.
ADMINISTRATIVE LAW JUDGE: Brian Del Vecchio
FINDINGS OF FACT
4 Powers Contracting LLC (Respondent) is the holder of License No. 322133 issued by the Registrar of Contractors (Registrar).
On June 30, 2022 the parties entered into a contract where Southwest Roofing & Cooling, LLC (Complainant) agreed to install a metal roof and related roof system for the sum of $66,025.00. It is undisputed when the parties signed the contract they understood time was of the essence and the completion date of the original contract was October 30, 2022. The parties further agreed that any material change in the scope of the work required written notice.
On October 26, 2022, Respondent sent a Letter of Concern/Delay to Complainant because Complainant had failed to perform up to said date. Respondent extended the performance date to December 31, 2022.
It is undisputed Complainant failed to meet the December 31, 2022, deadline.
On or about March 10, 2023, Respondent sent Complainant a Letter of Termination.
In a letter dated March 11, 2023, Complainant sent a Change Order to Complainant which consisted of an invoice for $72,288.41.
On or about March 17, 2023, Southwest Roofing & Cooling, LLC, filed a complaint against Respondent with the Registrar where they alleged Respondent failed to pay Complainant the sum of $31,025.00 for installation a new commercial roof and materials.
The parties were unable to resolve their differences, and Complainant requested an administrative hearing. The Registrar then issued a Citation for Alleged Violation of Ariz. Rev. Stat. § 32-1154(A)(10).
Erick Solis testified on behalf of Complainant that material changes to the roof were made after the signing of the original contract which required an architectural review and recalculation of materials; however, no written change order was submitted to Respondent because their discussions were verbal. Mr. Solis testified he was in communication with Respondent regarding delays in material sourcing related to the changes in the design and shape of the roof, but again, no written change orders were submitted.
Wesley Splawn testified on behalf of Respondent that prior to the Change Order dated March 11, 2023, no change orders were submitted to Respondent. He further testified Respondent was willing and able to pay Complainant at the end of the extension deadline, but for Complainant’s failure to perform. Respondent even paid Complainant for the roofing materials which were delivered to the jobsite but not installed after the December 31, 2022 deadline.
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 failed to establish that Respondent owed a total of $31,025.00 pursuant to the contract.
Therefore, Complainant failed to establish that Respondent violated Ariz. Rev. Stat. § 32-1154(A)(10) by failing to pay Complainant $31,025.00 for services or materials rendered in connection with Respondent’s contracting business. It is undisputed Complainant failed to perform under the contract on both the October 26, 2022 deadline and the December 31, 2022 deadline. While it may be true there were delays outside of Complainant’s control such as upstream supply issues, those delays were not accompanied by documentation and change orders.
RECOMMENDed order
Based on the foregoing, it is recommended that the Registrar dismiss the complaint.
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.
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-137160-45720000Done this day, June 28, 2023.
/s/ Brian Del Vecchio
Administrative Law Judge
Transmitted by either mail, e-mail, or facsimile to:
Martín Quezada, Director
Registrar of Contractors
Barry L. Olsen, Esq.
Law Offices of Larry W. Suciu, PLC
101 East Second Street
Yuma, AZ 85364
Southwest Roofing & Cooling LLC,
3630 W 8th St
Yuma, AZ 85364
[email redacted]
By: OAH Staff