ALJDEC - Licensing
2024A-02481-NPC-ROC · Registrar of Contractors · 2024-06-14
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
Imperial Excavating LLC,
COMPLAINANT
v.
JCS West LLC
License Nos. ROC 281691, 2329677,
RESPONDENT
No. 2024A-02481-NPC-ROC
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: June 10, 2024
APPEARANCES: Justin Suhr and Josh Thorne appeared on behalf of Complainant. Jacob Schwartz appeared on behalf of Respondent.
ADMINISTRATIVE LAW JUDGE: Amy M. Haley
EXHIBITS ADMITTED INTO EVIDENCE: Administrative Notice was taken of the Notice of Hearing (NOH) packet and all of its documents contained therein.
_____________________________________________________________________
FINDINGS OF FACT
JCS West LLC (Respondent) is the holder of License No. 281691 and 2329677 issued by the Registrar of Contractors (Registrar).
On or about February 29, 2024, Imperial Excavating LLC (Complainant) filed a Complaint against Respondent with the Registrar alleging that Respondent had failed to pay Complainant the sum of $4,151.00 for excavating work.
The parties were unable to resolve their differences, and Complainant requested an administrative hearing. The Registrar then issued a Citation for Alleged Violation of Ariz. Rev. Stat. § 32-1154(A)(10).
Complainant submitted a bid for work to excavate for a pool project on September 29, 2023 for a home located at 4444 E. Morning Star Ln., Cave Creek, AZ 85331.
The bid was made based upon a set of plans submitted by Respondent.
Those plans did not include a skimmer.
Those plans also anticipated the excavation of 573 sq. feet.
This bid was accepted by Respondent on October 2, 2023.
Work on the project began on or about October 13, 2023.
Upon arrival at the project, Complainant was informed that the plans had changed and was presented with the new plans on site.
Complainant and Respondent had a subsequent telephone conversation wherein the parties agreed to the cost of $250.00 per hour to perform the hard dig.
Complainant, at the time, estimated it would take approximately 3 hours according to the operator it had on site.
Respondent, who was actually on site and observed the hard dig, stated it took approximately 1 hour and 40 minutes.
Complainant billed for 3 hours.
Complainant also billed for excavating 664 sq. feet.
Respondent did not assert that it lacked the capacity to pay the amount Complainant asserted was due.
Hearing Evidence
Josh Thorne, the construction manager, testified on Complainant’s behalf. Mr. Thorne testified that the total due to Complainant was $4,151.00. Mr. Thorne testified that the plans changed once Complainant was on site and, therefore, the costs increased accordingly. Complainant further testified that Respondent agreed to $250.00 per hour for the hard dig, and that he had anticipated approximately 3 hours were necessary.
Justin Suhr, owner, testified on Complainant’s behalf. Mr. Suhr testified that the issues started when Respondent submitted subpar plans upon which the original bid relied. The plans submitted to Complainant did not include any skimmers. He further testified that “hard dig” conversations typically happened on site as the issue occurs and in the pool industry, no prior written change orders were completed for these types of things.
Jacob Schwartz, owner, testified on behalf of Respondent. Mr. Schwartz testified that he was present on site during the hard dig and that the hard dig took approximately 1 hour and 40 minutes and did not dispute that Respondent consented to $250.00 per hour for the hard dig. Mr. Schwartz stated the hard dig did not take 3 hours as invoiced. He further testified that what was ultimately dug was 485 sq. feet. He stated that he submitted plans to Complainant that showed 3 skimmers, but was unable to produce evidence that those set of plans were submitted to Complainant. Mr. Schwartz testified that he had originally agreed to the original bid of $3,019.00 and would have even paid the $3,019.00 if that was what was invoiced, but disagreed with the changes added. Finally, Mr. Schwartz stated he had not paid Complainant any money as of yet, even the amount that was undisputed, because he was attempting to resolve the final amount owed.
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.
A preponderance of the evidence is “such proof as convinces the trier of fact that the contention is more probably true than not.”
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 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.
Complainant asserted that 664 sq. feet was dug. Respondent asserted that 485 sq. feet was dug. There was no competent evidence to determine the actual size that was dug. Because Respondent stated it would have paid the original invoice of $3,019.00, that invoice included 573 sq. feet based off of original plans submitted. Therefore, the Administrative Law Judge finds that portion appropriate at $2,519.00.
There was no dispute over the “spa-attached” line item. Therefore $500.00 is appropriate.
The evidence established that the parties agreed on $250.00 per hour for the hard dig. The most credible evidence established that 1 hour and 40 minutes was spent on the hard dig. Therefore, $437.50 is appropriate for the hard dig labor.
The evidence further established that a skimmer was placed and filler board was used in the project, and that both items were necessary and required for the project. Therefore, $109.00 is appropriate for these two items.
The evidence established that Respondent owed a total of $3,565.50 for the work performed at the project.
Respondent failed to establish by a preponderance of the evidence that it lacked the ability to pay Complainant for the work performed.
Therefore, Complainant established that Respondent violated Ariz. Rev. Stat. § 32-1154(A)(10) by failing to pay Complainant $3,565.50 for services or materials rendered in connection with Respondent’s contracting business.
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.
RECOMMENDed order
Based on the foregoing, it is recommended that the Registrar suspend JCS West LLC License Nos. ROC 281691 and 2329677 issued by the Registrar until it has provided to the Registrar, and the Registrar has accepted, documents that establish that it has paid Complainant $3,565.50 in certified funds.
It is further recommended that when and if the Registrar receives and accepts Respondent’s evidence that it has paid Complainant $3,565.50 in certified funds, the Registrar may close the Complaint in Case No. 2024-02481.
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, June 14, 2024.
/s/ Amy M. Haley
Administrative Law Judge
Transmitted by either mail, e-mail, or facsimile to:
Tom Cole, Director
Registrar of Contractors
By: OAH Staff