ALJDEC - Licensing

2023A-10012-NPC-ROC · Registrar of Contractors · 2023-12-28

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

John Joseph Kowalski,

COMPLAINANT,

Innovative Outdoor Concepts LLC

License No. ROC 298588,

RESPONDENT.

No. 2023A-10012-NPC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: December 6, 2023; record open until December 8, 2023.

APPEARANCES: John Kowalski, Owner, represented Van’s Bobcat Kowalski Backhoe (Complainant). Joe Vosskuhler, Owner, represented Innovative Outdoor Concepts LLC Innovative Outdoor Concepts LLC (Respondent).

ADMINISTRATIVE LAW JUDGE: Kay A. Abramsohn

EXHIBITS ADMITTED INTO EVIDENCE: Notice of Hearing with Administrative Records and Complainant’s Invoices.

_____________________________________________________________________

FINDINGS OF FACT

Innovative Outdoor Concepts LLC (Respondent) is the holder of License No. ROC 298588 issued by the Registrar of Contractors (Registrar).

On August 28, 2023, John Kowalski (Complainant) filed a Non-Payment Complaint Form (Complaint) against Respondent with the Registrar alleging that Respondent had failed to pay Complainant the sum of $1,187.50 for work performed and completed the week of July 24, 2023. Complainant indicated that this amount was reflected on Invoice 9078.

The construction work took place at Dutch Bros. Coffee (Dutch Bros.) in Lake Havasu City. The progress of the parties’ respective work responsibilities at the site is somewhat unclear. Respondent was apparently hired by Baldwin to perform the landscaping work at Dutch Bros. Respondent reached out to Complainant with regard to work beyond Respondent’s capabilities.

Complainant and Respondent met at the job site on July 7, 2023 and came to an agreement verbally; there is no written contract. Complainant indicated the agreement was to do the work at $125.00 an hour. Complainant indicated that work consisted of the following: excavating for [10] tree holes, plants and irrigation lines; cleaning up “slopes” and planters; backfilling trenches and tree holes; and spreading gravel (after the other planting, lines, etc. work was done).

Respondent was providing the materials for his Baldwin-contracted site work, including lines, plants, trees and gravel.

Complainant had also been hired by Baldwin (the contractor for Dutch Bros.) with regard to grading at the site. Complainant was paid in full for his grading work, which he indicated was done prior to any landscaping work for Respondent; Complainant also stated he was never contacted by Baldwin about any issues with the grading work he performed.

Per Invoice #9074, Respondent paid Complainant $437.50 for 3.5 hours of work on July 7, 2023; that invoice describes the work performed as “Backhoe” and “dig tree holes.”

The week of July 24, 2023, Complainant again was on site performing work under the parties’ agreement. After the work was done, Complainant invoiced Respondent for $1,187.50 on Invoice #9078. Invoice #9078 describes the work as follows: 3.5 hours Backhoe (expose sleves, plant trees, and dig water lines); 2 hours Backhoe (backfill water lines and clean up slope); and, 4 hours Bobcat (spread rock and clean up planters).

Respondent delayed payment and, in August, informed Complainant that Respondent had had to “fix” Complainant’s grading work and had, therefore, reduced the bill/payment due by $350.00.

After the Complaint was filed, Respondent did issue a check to Complainant dated September 20, 2023 for $837.50.

The parties did not resolve the matter informally.

On September 27, 2023, the Registrar issued to Respondent a Citation for Alleged Violation of A.R.S. § 32-1154(A)(10).

On October 9, 2023, Respondent e-filed a response to the ROC with multiple explanations about the project and his belief that Complainant had “stolen” [i.e., used more than had been expected to be used or more than he needed to of] Respondent’s gravel leaving Respondent short with regard to Respondent’s own work on the project. Respondent indicated the following problems: (a) when Baldwin had expressed to Respondent that the dirt level next to the driveway was not to code (it needed to be as high as the asphalt level), that he (Respondent) “had” to fix it); (b) that the hole Complainant had prepared for one tree was not correct and the tree had died, which Respondent now had to replace; and, (c) that Complainant should see the value of his work and accept that Respondent’s work to “fix” the problem was fairly priced and, thereby, reduced the amount that should be paid to Complainant. Respondent also stated that, “to be fair,” Complainant should pay 7 [tons] at $60” for the “stolen” gravel used and also pay for the tree that died due to it being improperly planted in a “partial” hole (i.e., a hole that was “too small”).

At hearing, Complainant indicated that the 10 trees were moved and planted on the day the tree holes were dug. Complainant indicated that, subsequently, when the planting and backfill was done, he had used the Bobcat to take up Respondent’s gravel and, at the request of the Respondent’s crew, dump it in piles at places where Respondent’s crew was spreading it, and that no gravel was “stolen.” Complainant further indicated that the asphalt was laid after his grading work was completed.

At hearing, Respondent indicated that when Baldwin told Respondent the dirt in the island had to be at the same level as the asphalt, Respondent “figured” his crew could do that and he “took on the job” by moving gravel away from the curbing and putting in more dirt and re-spreading the gravel. Respondent also argued that Complainant should have put in more dirt (i.e., at that location) rather than use Respondent’s gravel.

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, at the time the Complaint was filed, Respondent owed Complainant a total of $1,187.50 on the project pursuant to Invoice #9078. Since the Complaint was filed, Respondent has paid Complainant $837.50; however, Respondent has not paid the remaining $350.00 to Complainant, arguing that Complainant should reduce his billing.

At the hearing, Respondent failed to present or establish by any preponderance of evidence that it had lacked the ability to pay Complainant for the work performed or that it had not been paid sufficient funds on the projects for which Complainant’s services were performed. Respondent’s arguments at hearing provide no such bases for its failure to have paid Complainant for the work Complainant performed on Respondent’s behalf under their July 2023 verbal agreement.

Therefore, Complainant established at hearing that Respondent violated A.R.S. § 32-1154(A)(10) by failing to pay Complainant the remaining $350.00 for services 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 Innovative Outdoor Concepts LLC License No. ROC 298588 issued by the Registrar until it has provided to the Registrar, and the Registrar has accepted, documents that establish that it has paid Complainant $350.00 in certified funds.

It is further recommended that when and if the Registrar receives and accepts Respondent’s evidence that it has paid Complainant $350.00 in certified funds, the Registrar may close the Complaint in Case No. 2023-10012.-54864001

001

-137160-45720000

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, December 28, 2023.

/s/ Kay A. Abramsohn

Administrative Law Judge

Transmitted electronically to:

Tom Cole

Registrar of Contractors

Legal Department

[email redacted]

Innovative Outdoor Concepts LLC

636 E Holmes Ave

Mesa, AZ 85204

[email redacted]

John Joseph Kowalski

PO BOX 3782

LAKE HAVASU CITY, AZ 86405

[email redacted]

By: OAH Staff