ALJDEC - Licensing

2024A-03279-NPC-ROC · Registrar of Contractors · 2024-08-23

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

D D Haught Inc,

COMPLAINANT

v.

Carlock Homes, LLC

License No. ROC 299125,

RESPONDENT

No. 2024A-03279-NPC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: August 8, 2024

APPEARANCES: Samuel Haught appeared via Google Meet on behalf of Complainant D D Haught Inc. Wes Carlock appeared via Google Meet on behalf of Carlock Homes, LLC.

ADMINISTRATIVE LAW JUDGE: Adam D. Stone

EXHIBITS ADMITTED INTO EVIDENCE:

_____________________________________________________________________

FINDINGS OF FACT

On May 23, 2024, the Registrar of Contractors (“ROC”) issued a Notice of Hearing on Contested Case setting the above-captioned matter for hearing on July 3, 2024, 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 Carlock Homes, LLC on April 25, 2024.

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. 299125 issued by ROC. Wesley Carlock is Respondent’s qualifying party and a member in the corporation.

Complainant is D D Haught Inc.

The parties had a verbal Time and Material agreement on three projects, namely, “Chaparral Pines Lot 2”, “809 N. Chaparral Pines Dr.”, and “9814 Red Bluff”.

On or about March 8, 2024, Complainant filed with ROC a complaint against Respondent alleging that Respondent owed Complainant $42,271.47.

After a continuance, hearing was held on August 8, 2024.

At hearing, Samuel Haught testified that only the “Chaparral Pines Lot 2” invoice remained unpaid.

Mr. Haught testified that the total amount owed on that invoice was now $30,691.43, as he deducted some of the balance due.

In addition, Mr. Haught testified that there was no discussion of terms just that Mr. Carlock told him to get going on the project.

Mr. Carlock testified that he did not dispute that Complainant performed the work. However, Mr. Carlock was concerned that work had commenced in November 14, 2022, and ended in June 2023, yet the only invoice he received was on July 17, 2023.

Because of this, Mr. Carlock testified that it was impossible for him to reconcile the hours worked on specific days from 8 months prior. Mr. Carlock also testified that it was hard to believe that labor was $45.00 per hour, when there were many different skill levels of laborers at the project.

Further, Mr. Carlock testified that there were also inconsistencies on the invoice such as March 9, 2023, where there were charges for grout pump and sack grout, yet no corresponding labor costs.

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).

In this case, Complainant has not proven by a preponderance of the evidence that $30,691.43. In fact, the tribunal cannot determine if there was even a valid contract for the purposes of this licensing action. To that end, ROC sent correspondence to Complainant on March 22, 2024 requesting the following:

The Registrar received a complaint filed against Carlock Homes, LLC for non-payment of materials or services rendered. This complaint is incomplete and will not be substantively reviewed by the Registrar until the following documentation is provided:

1. Please provide a copy of the original contract signed by both parties. If no written contract, provide:

a. The reason a written contract is not being provided.

b. A description of any written documents used to describe the contract.

c. The work to be performed under the contract.

d. The names of the people who negotiated the contract.

e. The agreed upon payment schedule.

f. Who was to receive payment; and

g. Date the work was to be completed

You can also attach credit application, promissory notes, emails, and/or texts....

In response, Complainant sent in a written statement stating it was a verbal agreement for Time and Material, but there was no agreed upon payment schedule nor date the work was to be completed. There was also no evidence provided by Complainant that there were any emails, text messages, or any other correspondence discussing the same.

Therefore, the preponderance of the evidence shows that Respondent has not violated section 32-1154(A)(10), and no discipline should come to Respondent’s license. However, this does not necessarily alleviate Respondent’s responsibility to pay Complainant, and Complainant still may have other legal avenues to pursue the balance owed.

RECOMMENDED ORDER

IT IS RECOMMENDED that the Complaint against Carlock Homes, LLC be 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, August 23, 2024.

/s/ Adam D. Stone

Administrative Law Judge

Transmitted by either mail, e-mail, or facsimile to:

Tom Cole, Director

Registrar of Contractors

Carlock Homes, LLC

[email redacted]

D D Haught Inc.

[email redacted]

By: OAH Staff