ALJDEC - Licensing
2024A-02009-NPC-ROC · Registrar of Contractors · 2024-09-09
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
Morningstar Homes LLC
COMPLAINANT,
v.
Avantgarden Design + Build LLC
License No. ROC 290552,
RESPONDENT.
No. 2024A-02009-NPC-ROC
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: August 19, 2024
APPEARANCES: Michael Scott Longanecker for Morning Star Homes, LLC (Complainant). Galbut Bebeau, Esq. for Avantgarden Design + Build, LLC (Respondent).
ADMINISTRATIVE LAW JUDGE: Velva Moses-Thompson
EXHIBITS ADMITTED INTO EVIDENCE: Respondent’s Exhibits 1 through 11.
_____________________________________________________________________
FINDINGS OF FACT
1. In March of 2022, Complainant agreed to perform framing and roofing work for Respondent in connection with Respondent’s work as a general contractor, for a total of $143,000.
2. Complainant performed the framing work as required under the contract. Respondent paid Complainant for the framing work. Complainant also performed some roofing work under the contract.
3. Complainant subsequently filed a complaint with the Arizona Registrar of Contractors (Registrar) alleging that Respondent failed to pay him $67,957.42 for the roofing work performed under the contract.
4. On May 7, 2024, the Registrar issued a Citation against Complainant’s license alleging that Respondent violated Ariz. Rev. Stat. § 32-1154(A)(10).
5. Respondent filed a timely response to the Citation.
6. The matter was referred to the Office of Administrative Hearings for an evidentiary hearing.
7. At hearing, Complainant’s owner, Michael Scott Longanecker, testified on behalf of Complainant. Respondent presented the testimony of its qualifying party, Todor Spasov.
8. Mr. Longanecker stated that he performed all roofing work with the exception of the installation of the roof drain covers. Mr. Longanecker stated that Respondent did not provide him with access to the construction site to install the roof drain covers.
9. Mr. Longanecker stated that the installer of doors and windows installs the flashing at the same time. Mr. Longanecker stated that it was not a part of his contract to install the windows and doors and he did not install the flashing. Mr. Longanecker stated that he was not responsible for the flashing.
10. Mr. Longanecker stated that the pooling was cause by the size of the crickets. Mr. Longanecker stated that he wanted to build the crickets higher to avoid pooling, but Respondent did not want them build higher because it would be uncomfortable when people walked on the sloped portion. Mr. Longanecker also stated that the paint does not match because when paints sits in the sun a long time, the color fades.
11. Mr. Longanecker stated that Respondent has only paid him $24,500 for the roof. Mr. Longanecker was not sure whether Complainant provide lien releases to Respondent. However, he stated that his wife “typically” provides a lien release when she receives payment. Mr. Mr. Longanecker stated that he never received a written statement that the roof work was completed.
12. Mr. Longanecker disputed that Complainant left any cracks.
Mr. Longanecker asserted that all cracks were repaired.
13. Mr. Longanecker acknowledged receiving a $6,400 check that was written to Morning Star Construction. However, Mr. Longanecker stated that the check was not correctly written out to Complainant. Additionally, Mr. Longanecker stated that the check for $6,400 stated that it was the final balance, however, Complainant disputes that the final balance was $6,400. Mr. Longanecker stated for those reasons, the check was returned to Respondent.
14. Mr. Longanecker stated that he only agreed to provide labor for the framing. However, Mr. Longanecker stated that he supplied materials above and beyond the contract for which he did not receive payment.
15. Mr. Spasov did not dispute that Mr. Longanecker’s framing contract was for labor only. However, Mr. Spasov stated that he paid Complainant approximately $20,000 for the extra materials provided by Complainant through a change order.
See Respondent’s Exhibit 1, AD+B 000007.
16. Mr. Spasov disputed Mr. Longanecker’s testimony that flashing was not part of the scope of his contract. Mr. Spasov stated that flashing and completion of the water proof was required. Mr. Spasov stated that the paint does not match. Mr. Spasov stated that the cracks are reoccurring and that the crickets are not the cause of the ponding.
17. Mr. Spasov stated that he did not deny Complainant access to the project.
18. Mr. Spasov stated that the final payment for the project was the amount of $6,400. See Exhibit 1, Bates. AD+B 000007.
19. Mr. Spasov stated that Respondent paid Complainant for the entire project with the exception of the final payment of $13,974, because Complainant did not complete the roofing. See Exhibit 1, Bates AD+B 000007 and AD+B 000015. Therefore, final payment for the roofing work did not become due.
CONCLUSIONS OF LAW
1. This matter lies within the Registrar’s jurisdiction.
2. 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.
3. 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).
4. 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.")
5. “Statutes shall be liberally construed to effect their objects and to
promote justice.” Ariz. Rev. Stat. § 1-211(B).
6. 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).
7. Ariz. Rev. Stat section 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. Upon consideration of the evidence presented at hearing, the Administrative Law Judge concludes that payment for the completion of the roof in the amount of $13,974 did not become due because Complainant failed to complete the roofing project. Furthermore, Complainant failed to meet its burden to establish that Respondent failed to pay him the balance of the framing and roofing contract (with the exception of the $13,974 payment).
9. Accordingly, Complainant has failed to meet its burden to show that Respondent violated Ariz. Rev. Stat section 32-1154(A)(10) as alleged.
ORDER
IT IS ORDERED that the Citation and Complaint in Case No. 2024A-02009 is dismissed.
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, September 9, 2024.
/s/ Velva Moses-Thompson
Administrative Law Judge
Transmitted by either mail, e-mail, or facsimile to:
Tom Cole, Director
Registrar of Contractors
Morningstar Homes LLC
[email redacted]
Avantgarden Design + Build LLC
[email redacted]
[email redacted]
[email redacted]
By: OAH Staff