ALJDEC - Licensing
2023A-05688-NPC-ROC · Registrar of Contractors · 2024-02-01
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
Alpha Builder LLC,
COMPLAINANT
v.
NewBuild LLC
License No. ROC 290625,
RESPONDENT
No. 2023A-05688-NPC-ROC
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: January 16, 2024
APPEARANCES: Complainant Alpha Builder LLC was represented by Adam Weisman, Esq. Respondent NewBuild LLC was represented by Steven Weber, Esq.
ADMINISTRATIVE LAW JUDGE: Adam D. Stone
EXHIBITS ADMITTED INTO EVIDENCE: Complainant’s Exhibits 1-16 and Respondent’s Exhibits 1-9 were admitted into evidence.
_____________________________________________________________________
FINDINGS OF FACT
On July 5, 2023, the Registrar of Contractors (“ROC”) issued a Notice of Hearing on Contested Case setting the above-captioned matter for hearing on August 15, 2023 at the Office of Administrative Hearings.
The Notice of Hearing shows that the hearing was being conducted on the charges made in the complaint and citation that were served on Respondent NewBuild LLC on May 16, 2023.
Through the citation and Notice of Hearing, ROC alleges that Respondent may have violated Ariz. Rev. Stat. section 32-1154(A)(10).
Respondent holds License No. 290625 issued by ROC. Ronald Peetz was Respondent’s qualifying party.
Complainant is Alpha Builder LLC.
Complainant provided equipment to Respondent in connection with its license.
On or about May 16, 2023, Complainant filed with ROC a complaint against Respondent alleging that Respondent owed Complainant $56,298.28.
After several continuances, hearing was held on January 16, 2023.
The facts in this matter are largely undisputed.
Respondent was the builder on a residence. The home did not have electricity. One of Respondent’s sub-contractors mistakenly left a water valve in the open position in the laundry room. Later, when the water company came to install the water meter and turn on the water, the laundry room began to flood. The flood eventually spread to the other parts of the home and there was about three inches of standing water.
On November 19, 2022, Mr. Peetz contracted many business to help remove the water damage, but none could supply their own generators. Complainant was the only one who could, therefore the parties agreed that Complainant would come to the property the next day to provide the necessary equipment to remediate the damage.
On November 20, 2022, Complainant provided the equipment and began to provide its services. Services were provided for 21 days.
On or about December 28, 2022, Complainant provided an invoice to Respondent in the amount of $46,298.28. Complainant provided a second invoice to Respondent on or about January 10, 2023 in the amount of $45,323.52.
On January 11, 2023, Mr. Peetz emailed Complainant stating in pertinent part, “...I am willing to pay a reasonable amount for the work performed. By reasonable, I feel that around $8,000 would be fair. Please send me an invoice for $8,000, and I will pay it. Any larger invoice will not be paid.”
At hearing, Jana Bortniker, Complainant’s part-owner, testified to the above. Ms. Bortniker testified that she requested that Mr. Peetz cut the walls and baseboards to not only speed up the remediation, but that it would help to ensure that there was no mold. Mr. Peetz refused to do the same, thus the entire remediation project took 21 days.
Ms. Bortniker testified that there was no discussion as to price, and that she attempted to provide a contract on the first day, but Respondent’s representative at the jobsite informed her that Mr. Peetz would have to sign the same. Eventually, a blank contract was sent to Respondent on December 19, 2023, but it was never filled in nor executed by either party.
Further, Ms. Bortniker testified that she using the software “Xactimate” for all of her jobs and this job was no different. However, Ms. Bortniker testified that she did not inform Mr. Peetz of the same. Ultimately, Ms. Bortniker reduced the invoice to $45,323.52, as she had to swap out the smaller generators for a larger one.
Ms. Bortniker testified that Mr. Peetz offered to pay $8,000.00 but she refused the offer because he provided no information to prove that $8,000.00 was reasonable.
Mr. Peetz testified that he too generally agreed with the facts. Mr. Peetz testified that he never inquired about the Complainant’s rates, and that he made the assumption that he would be treated fairly and honestly, and did not believe the cost would be more than $7-8,000.00. He testified further that he requested pricing at least five times and was never given a response.
During the pendency of this matter, Mr. Peetz testified that he had researched other companies and what their rates would be, which were much less. In some cases, Mr. Peetz testified, that it would have been cheaper to buy the equipment himself than use Complainant’s.
Finally, Mr. Peetz testified that he has never refused to pay and was willing to pay a reasonable amount. Mr. Peetz further testified that he had not sent any payment to Complainant to date.
CONCLUSIONS OF LAW
Unless otherwise provided by 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).
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).
Among the grounds for suspension or revocation of a contractor’s license is a “[f]ailure by [the] 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.” Ariz. Rev. Stat. § 32-1154(A)(10).
The preponderance of the evidence shows that Respondent owes Complainant more than $750.00 for materials/services provided in connection with Respondent’s operations as a contractor. It was clear from the evidence and testimony provided that Mr. Peetz was willing to pay at least $8,000.00 for the equipment and services provided from Complainant. The tribunal will not determine if this is the only amount owed to Complainant, but to date, Respondent has paid nothing, which was certainly not what the statute intended. Respondent failed to provide any other valid defense under the statute, therefore, the preponderance of the evidence shows that Respondent has violated section 32-1154(A)(10).
Respondent’s license should be suspended until it pays to Complainant $8,000.00.
RECOMMENDED ORDER
IT IS RECOMMENDED that NewBuild LLC’s license number 290625 be suspended until the Registrar receives proof that it has paid to Alpha Builder LLC $8,000.00.
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, February 1, 2024.
/s/ Adam D. Stone
Administrative Law Judge
Transmitted by either mail, e-mail, or facsimile to:
Tom Cole, Director
Registrar of Contractors
Stephen L. Weber
[email redacted]
Adam Weisman
[email redacted]
By: OAH Staff