ALJDEC - Licensing
2023A-05383-NPC-ROC · Registrar of Contractors · 2023-10-18
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
Saenz Maintenance LLC
COMPLAINANT,
v.
DJ PAINTING PHX LLC
DBA: Painter 1 of PHX East Valley
License No. ROC 343534,
RESPONDENT.
No. 2023A-05383-NPC-ROC
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: September 28, 2023
APPEARANCES: Jesse Saenz represented Complainant Saenz Maintenance, LLC. Dallin Richard Fahnestock represented Respondent DJ Painting PHX, LLC DBA: Painter 1 of PHX East Valley.
ADMINISTRATIVE LAW JUDGE: Velva Moses-Thompson
_____________________________________________________________________
FINDINGS OF FACT
Respondent DJ PAINTING PHX LLC DBA: Painter 1 of PHX East Valley holds license number 343534 issued by the Arizona Registrar of Contractors (Registrar).
According to the Registrar’s public website, Jeff Funk is Respondent’s qualifying party.
Dallin Richard Fahnestock is a manager for Respondent.
Respondent agreed to paint the home of Taylor Funk located at 36815 N. Boulder View Dr. in Scottsdale, Arizona, 85262 (the home).
Complainant Saenz Maintenance, LLC agreed to paint the home for Respondent, in connection with Respondent’s work as a contractor.
Tommy Lugo referred the job to Complainant.
There was no written contract for the paint job.
On April 18, 2023, after completing the painting job, Complainant issued Invoice Number 14143 to Respondent, for the amount of $6,500, by e-mail.
On April 18, 2023, Mr. Fahnestock responded with the following message, “We need the W9, license certificate, and copy of your insurance in order to pay you.” Complainant provided the requested documents to Mr. Fahnestock the same day.
On April 27, 2023, Mr. Fahnestock sent an e-mail to Complainant that provided, in relevant part, as follows:
We pay when the job is complete and paid in full. This job has been a little different in that the client was going to pay you directly but the job is not completed as agreed. The client fired us and is finishing the job himself, and because of this, the client is only paying for a certain amount. The client is having to prime and repaint all the closet and pantry shelves, roll another coat on all walls, paint the hallway baseboard that wasn’t painted by us, do another coat on the top of the baseboard cut line, fix damages done to garage walls and paint, clean of light switches and other things that had overspray, part of the bedroom master patio door jambed and was not painted, door hardware put back on wrong, door hinges not installed right cause the doors to hit the jambs, repaint the small hallway ceiling, and the list goes on and on. I was there a lot and discussed what needed to be done wither with you or the crew lead and they were never completed properly. The marked touch-up areas were marked with tape and that tape was simply just removed without completing the touch-up.
I will get back to you when the client has paid......
Emphasis in bold.
Errors in original only.
Respondent did not pay Complainant for painting the home.
On or about May 9, 2023, the Registrar received a complaint from Complainant alleging that Respondent failed to pay for materials or services rendered.
On or about May 11, 2023, the Registrar notified Respondent of the complaint.
On or about May 17, 2023, Respondent’s qualifying party, Jeff Funk, filed a response to the complaint. Mr. Funk alleged that Complainant abandoned the job.
The Registrar investigated the complaint and issued a Citation to Respondent, on or about May 31, 2023. Through the Citation, the Registrar alleged that Respondent violated Arizona Revised Statutes (A.R.S.) § 32-1154(A)(10).
Respondent filed a timely response to the Citation.
The matter was referred to the Office of Administrative Hearings for an evidentiary hearing.
A hearing was held on September 28, 2023.
At hearing, Complainant testified on behalf of himself. Respondent presented the testimony of Mr. Fahnestock and Taylor Funk.
Complainant stated that he performed good work and completed the paint job.
Mr. Fahnestock and Taylor Funk alleged that Complainant failed to complete the paint job, performed poor work, and damaged the home.
Mr. Fahnestock contended at hearing and in that he had no contract with Complainant, but rather, with Tommy Lugo.
Mr. Fahnestock stated through e-mail that Respondent would pay Complainant a different amount than originally agreed to due to Complainant’s alleged deficient work. However, at hearing, Mr. Fahnestock stated that it was agreed that no payment would be made to Complainant.
Mr. Fahnestock stated through e-mail that Complainant would be paid directly from Taylor Funk. However, at hearing, Mr. Fahnestock stated that Complainant would be paid by Tommy Lugo.
Mr. Fahnestock stated at hearing that he told Complainant not to return the job. However, Respondent’s qualifying party alleged in the response that Complainant abandoned the job.
Based on the inconsistent evidence provided through Mr. Fahnestock’s e-mails and testimony, I find Mr. Fahnestock’s testimony to be unreliable.
Furthermore, there are conflicting statements from Respondent regarding whether Complainant abandoned the job or was told not to return.
CONCLUSIONS OF LAW
A party asserting a claim, right, or entitlement bears the burden of proof; a party asserting an affirmative defense has the burden of establishing the affirmative defense. The standard of proof on all issues in this matter is that of a preponderance of the evidence. Ariz. Admin. Code R2-19-119.
“At a hearing on an agency action to suspend, revoke, terminate or modify on its own initiative material conditions of a license or permit, the agency has the burden of persuasion.” Ariz. Rev. Stat. § 41-1092.07(G)(2).
A preponderance of the evidence is:
The greater weight of the evidence, not necessarily established by the greater number of witnesses testifying to a fact but by evidence that has the most convincing force; superior evidentiary weight that, though not sufficient to free the mind wholly from all reasonable doubt, is still sufficient to incline a fair and impartial mind to one side of the issue rather than the other.
Black’s Law Dictionary 1373 (10th ed. 2014).
The Administrative Law Judge may consider the ROC’s administrative
record. See A.A.C. R4-9-118.
Statutes should be interpreted to provide a fair and sensible result. Gutierrez v. Industrial Commission of Arizona, 226 Ariz. 395, 249 P.3d 1095 (2011)(citation omitted); State v. McFall, 103 Ariz. 234, 238, 439 P.2d 805, 809 (1968) ("Courts will not place an absurd and unreasonable construction on statutes.").
“Statutes shall be liberally construed to effect their objects and to promote justice.” Ariz. Rev. Stat. § 1-211(B).
The purpose of the Registrar’s licensing statutes is to protect the public from unscrupulous, unqualified, and financially irresponsible contractors. See Aesthetic Property Maintenance v. Capital Indem. Corp., 183 Ariz. 74, 900 P. 2d 1210 (1995).
Ariz. Rev. Stat § 32-1154(A) provides that:
The holder of a license or any person listed on a license pursuant to this chapter shall not commit any of the following acts or omissions: .... 10. Failure by a licensee or agent or official of a licensee to pay monies in excess of seven hundred fifty dollars when due for materials or services rendered in connection with the licensee's operations as a contractor when the licensee has the capacity to pay or, if the licensee lacks the capacity to pay, when the licensee has received sufficient monies as payment for the particular construction work project or operation for which the services or materials were rendered or purchased.
8. 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 . . . to pay monies in excess of seven hundred fifty dollars when due for materials or services rendered in connection with the licensee’s operations as a contractor when the licensee has the capacity to pay or, if the licensee lacks the capacity to pay, when the licensee has received sufficient monies as payment for the particular construction work project or operation for which the services or materials were rendered or purchased.”
9. Payment for “[s]ervices rendered in connection with the licensee’s operations as a contractor” does not include interest, finance charges, lien charges, or other charges that are based solely on contract terms.
10. The preponderance of the evidence shows that Respondent violated Ariz. Rev. Stat § 32-1154(A)(10) as alleged.
11. 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.
12. Because A.R.S. § 32-1154(A)(10) only includes a licensee’s failure to pay for
materials or services rendered in connection with the licensee’s operations as a contractor, not late fees, interest, or other consequential or contractual damages, the Administrative Law Judge does not recommend that Respondent be required to pay late fees as a condition of keeping its contractor’s license in good standing.
RECOMMENDed order
Based on the foregoing, it is recommended that the Registrar suspend license number 343534 issued to DJ PAINTING PHX LLC DBA: Painter 1 of PHX East Valley
by the Registrar, until it has provided to the Registrar, and the Registrar has accepted, documents that establish that it has paid Complainant $6,500 in certified funds.
It is further recommended that when and if the Registrar receives and accepts Respondent’s evidence that it has paid Complainant $6,500 in certified funds, the Registrar may close the Complaint in Case No. 2023A-05383.
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, October 18, 2023.
/s/ Velva Moses-Thompson
Administrative Law Judge
Transmitted by either mail, e-mail, or facsimile to:
Tom Cole, Director
Registrar of Contractors
[email redacted]
Saenz Maintenance LLC
[email redacted]
DJ PAINTING PHX LLC
DBA: : Painter 1 of PHX East Valley
P.O. Box 771
[email redacted]
By: OAH Staff