ALJDEC - Licensing

2023A-05380-NPC-ROC · Registrar of Contractors · 2023-08-18

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Reeis Az Inc.,

COMPLAINANT

v.

Gentry Estates LLC

License No. ROC 278337,

RESPONDENT

No. 2023A-05380-NPC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: July 31, 2023

APPEARANCES: Todd Russo, Owner and Qualifying Party, appeared on behalf of Complainant Reeis Az Inc. Clint Schuler, Owner and Qualifying Party, appeared on behalf of Respondent Gentry Estates LLC.

ADMINISTRATIVE LAW JUDGE: Tammy L. Eigenheer

_____________________________________________________________________

FINDINGS OF FACT

Gentry Estates LLC (Respondent) is the holder of License No. 278337 issued by the Registrar of Contractors (Registrar).

On or about May 9, 2023, Reeis Az, Inc. (Complainant) filed a Complaint against Respondent with the Registrar alleging that Respondent had failed to pay Complainant the sum of $24,755.00 for services provided on project for Respondent.

The parties were unable to resolve their differences, and Complainant requested an administrative hearing. The Registrar then issued a Citation for Alleged Violation of A.R.S. § 32-1154(A)(10).

Todd Russo, Complainant’s Owner and Qualifying Party, testified that the total due to Complainant was $24,755.00. Mr. Russo maintained that in the six months Complainant had been attempting to collect the amount due, Respondent had not indicated any issues with the work performed or that the invoice would not be paid at some point.

Tyler Murphy, employee of Complainant, testified that Mr. Schuler never indicated he was not going to pay the invoices. Rather, Mr. Schuler made comments to Mr. Murphy that he had to “rob Peter to pay Paul.”

Clint Schuler, Respondent’s Owner and Qualifying Party, first argued that Respondent did not have a contract with Complainant, but acknowledged that Respondent’s superintendent contacted Complainant to do the rough-in work and he paid Complainant the initial payment for the work performed. Mr. Schuler further asserted that Respondent was not paid by the project owner for Complainant’s work. Mr. Schuler acknowledged Respondent was paid more than $38,000.00, the total Complainant charged for the work performed. Mr. Schuler maintained that Complainant did not complete the work properly, and therefore, was not entitled to payment. Mr. Schuler stated that even if the project owner had paid Respondent for the work, he would not have paid Complainant because it failed to do the work.

Upon questioning by the Administrative Law Judge, Mr. Schuler became defensive. Mr. Schuler indicated that the Registrar was out to get contractors and that he would fight any fine or discipline imposed in this matter. When the Administrative Law Judge attempted to ask clarifying questions, Mr. Schuler elected to leave the virtual hearing and, therefore, did not answer any questions from Complainant.

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. See A.A.C. R2-19-119.

A preponderance of the evidence is “such proof as convinces the trier of fact that the contention is more probably true than not.” Morris K. Udall, Arizona Law of Evidence § 5 (1960).

A.R.S. § 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 $24,755.00 for services rendered.

Respondent failed to establish by a preponderance of the evidence that it lacked the ability to pay Complainant for the work performed and had not received sufficient monies as payment for the project.

Therefore, Complainant established that Respondent violated A.R.S. § 32-1154(A)(10) by failing to pay Complainant $24,755.00 for services or materials rendered in connection with Respondent’s contracting business.

Based upon Respondent’s violation of the provisions of A.R.S. § 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 Gentry Estates LLC’s License No. 278337 issued by the Registrar until it has provided to the Registrar, and the Registrar has accepted, documents that establish that it has paid Complainant $24,755.00 in certified funds.

It is further recommended that when and if the Registrar receives and accepts Respondent’s evidence that it has paid Complainant $24,755.00 in certified funds, the Registrar may close the Complaint in Case No. 2023-05380.

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 18, 2023.

/s/ Tammy L. Eigenheer

Administrative Law Judge

Transmitted by either mail, e-mail, or facsimile to:

Martín Quezada, Director

Registrar of Contractors

Reeis Az Inc.

[email redacted]

Gentry Estates LLC

[email redacted]

By: OAH Staff