ALJDEC - Licensing

2024A-06331-CHC-ROC · Registrar of Contractors · 2024-12-09

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Roberto Juarez,

COMPLAINANT,

Canyon State Barricade Service LLC

License Nos. ROC 338321,348321, 348353, 350996,

RESPONDENT.

No. 2024A-06331-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: November 18, 2024.

APPEARANCES:

For Complainant: Roberto Juarez.

For Respondent: Larry Herrera.

For the Registrar of Contractors: Investigator Lisa Melton.

ADMINISTRATIVE LAW JUDGE: Samuel Fox

EXHIBITS ADMITTED INTO EVIDENCE: Administrative notice was taken of the Notice of Hearing Packet submitted by the Registrar of Contractors. Respondent’s Exhibits 1 through 4.

_____________________________________________________________________

FINDINGS OF FACT

Canyon State Barricade Service LLC (Respondent) was the holder of Licenses numbered 338321, 348321, 348353, and 350996, issued by the Arizona Registrar of Contractors (Registrar) on May 20, 2022, October 24, 2023, October 25, 2023, and March 18, 2024, respectively.

On or about March 22, 2024, Respondent provided a quote to Complainant.

On or about April 15, 2024, Roberto Juarez (Complainant) entered into a contract with Respondent by accepting the March 22, 2024, quote. The contract had four line items: (1) purchase of two 12 foot concrete barriers, (2) the purchase of five 17 foot concrete barriers, (3) two delivery fees for placing the barriers, and (4) one additional fee for placement of the barriers. The value of the contract was $7,048.14.

Respondent was unable to make the delivery pursuant to the contract. Complainant credibly testified that the parties agreed that larger barriers would be provided at the same price.

After delivery of the barriers, Respondent sent Complainant an invoice for approximately $10,000. Respondent claimed that the barriers were the same price, but because the larger barriers were new, instead of used, the price was higher. Complainant paid the original price of the contract but refused to pay the additional $3,000.

On at least two occasions, Respondent threatened to reclaim the barriers if Complainant did not pay the higher price.

On or about June 4, 2024, Complainant filed a Licensed Complaint Form with the Registrar, claiming other, specifically poor conduct by Respondent.

On or around June 15, 2024, Complainant realized that the barriers were gone. Complainant believed that Respondent stole the barriers from the work site. Complainant reported the theft to the Registrar on June 16, 2024.

The Registrar assigned the complaint to Investigator Lisa Melton, who issued a Jobsite Inspection Notice on June 19, 2024, scheduling the inspection for July 11, 2024.

Investigator Melton conducted the jobsite inspection on July 11, 2024, and Respondent was not present. Following the inspection, Investigator Melton issued a Written Directive From the Registrar to Respondent on August 12, 2024, that provided as follows:

You are directed to remedy the following violations by the appropriate means:

Compliance Item 3: Delivering different concrete barriers size than contracted.

Investigator’s Observation: Complaint was filed on June 4, 2024. On Sunday, June 16, 2024, I received an email from the Complainant stating: I would like to add to my complaint that Canyon State Services broke into the private property and stole the barriers. I advised Complainant that they should notify local law enforcement. Respondent did not appear for this inspection and provided no response to the allegations. At the time of the inspection, none of the 9 barriers identified on Respondents quote were on site. Respondent should complete their scope of work by appropriate methods.

Governing Rule: A.R.S. §32-1154 (A) (1), Abandonment of a contract or refusal to perform after submitting a bid on work without legal excuse for the abandonment or refusal.

Compliance Item 4: Offer different barrier size than contracted for the same price and billing a higher price not honoring offer.

Governing Rule: A.R.S. §32-1154 (A) (1), Abandonment of a contract or refusal to perform after submitting a bid on work without legal excuse for the abandonment or refusal.

Compliance Item 5: Pressure to pay overcharge charge price on invoice immediately on a 30 day net contract with threat of trespassing .

Governing Rule: A.R.S. §32-1154 (A) (1), Abandonment of a contract or refusal to perform after submitting a bid on work without legal excuse for the abandonment or refusal.

Compliance Item 6: Threat of trespassing and reclaim paid goods if not agree to overpay immediately on a 30 day net contract not expired.

Governing Rule: A.R.S. §32-1154 (A) (1), Abandonment of a contract or refusal to perform after submitting a bid on work without legal excuse for the abandonment or refusal.

The Written Directive required Respondent to notify Investigator Melton of Respondent’s compliance with the directive prior to 5:00 p.m. on August 28, 2024.

On September 3, 2024, the Registrar issued a Citation against Respondent, finding cause to charge Respondent with violations of A.R.S. §§ 32-1154(A)(1) and 32-1154(A)(22).

Respondent submitted an Answer to the Citation on September 18, 2024. Respondent’s Answer stated that Complainant authorized additional charges for the longer barriers, that they attempted to remedy the delivery but were told not to contact Complainant, and that Complainant owed Respondent money.

The Registrar referred the matter to the Office of Administrative Hearings, an independent state agency, for an evidentiary hearing.

On October 7, 2024, the Registrar issued a Notice of Hearing on Contested Case setting the hearing for November 18, 2024, at 1:00 PM.

The hearing was held via Google Meet on November 18, 2024.

Investigator Melton testified in support of her investigation.

Complainant testified that Respondent was late to deliver the purchased barriers, and Complainant contacted Respondent about it. Respondent stated that it could provide different seized barriers for the same price, and Complainant was clear that it would not pay more. Respondent delivered the alternative barriers, and it later provided the invoice with an increased the price. When Complainant refused to pay the increased price, Respondent threatened to take the barriers back. Complainant testified that he believed Respondent came and took the barriers back, just as they threatened to do.

Respondent’s witness testified that Complainant agreed to pay whatever was necessary to get the job done, which was contradicted by the written communications and Complainant’s credible testimony.

Respondent’s witness testified that they were owed extra for delivery.

Respondent’s witness testified that they did not take the barriers. Respondent’s witness testified that it would be impossible to take the barriers away because of how large they are. Contrarily, Respondent sells and delivers barriers of this size, as seen in this matter. Furthermore, Respondent’s witness testified that Respondent sells used barriers of the same size, which means Respondent is able to pick and move such barriers, indicating Respondent could have done so in this matter while few other individuals or companies would have been able to do so.

Respondent indicated concern about any discipline being applied to all of the licenses instead of just to the barricade-related license. The record does not indicate which subset of licenses would be at issue in this matter.

Administrative notice was taken of Respondent’s prior License record on December 3, 2024. According to that record, this matter is the only complaint on any of the licenses.

CONCLUSIONS OF LAW

This matter lies within the Registrar’s jurisdiction.

Complainant bears the burden of proof to establish Respondent’s statutory violations by a preponderance of the evidence. Respondent bears the burden of proof to establish an affirmative defense 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.”

Abandonment includes to withdraw from a project and contract. A Respondent’s actions, or inaction, must be so severe, that a reasonable person could infer Respondent’s intent to abandon the project, incurring the consequences of that abandonment. Mere untimeliness or inefficiency does not amount to abandonment.

During the Directive period, a complainant cannot refuse access to a contractor and seek discipline against that contractor. Refusing access during the directive period impinges on the contractor’s right to defend itself by correcting its work within the Registrar of Contractors process. However, complainants are not required to give a contractor free reign of the property: they may set reasonable limits on access, while providing the contractor sufficient time and access to correct the issues by appropriate means. Complainants may also refuse access to the property before and after the directive period.

Nonconsensual removal of property from a work site is damage to the property under A.R.S. § 32-1156.01(A). When the seller of property removes that property which he previously sold to a buyer from the buyer’s work site, the buyer is injured and the property is damaged in the amount of the sales contract that is attributable to the property taken.

In this case, Respondent entered a contract with Complainant for the sale and delivery of nine (9) barricades; Respondent delivered the barricades; Complainant paid for the barricades. Accordingly, the full value of the sales contract is recoverable as restitution for injury to the buyer and damage to the property under A.R.S. § 32-1156.01(A).

The preponderance of the evidence established that Respondent removed the barriers from Complainant’s work site after Complainant refused to pay the excess fees.

The preponderance of the evidence established that the full value of the contract is attributable to the barriers that were removed from Complainant’s work site.

The preponderance of the evidence established that Respondent abandoned the project or refused to perform work without a legal excuse in violation of A.R.S. § 32-1154(A)(1).

The preponderance of the evidence failed to establish that Respondent was denied access to the property.

The preponderance of the evidence established that Respondent failed to take appropriate corrective action following a written directive from the Registrar in violation of A.R.S. § 32-1154(A)(22).

RECOMMENDED ORDER

Based on the foregoing, it is recommended that on the effective date of the Order, the Registrar shall suspend for 5 days Respondent’s Licenses which authorize its barrier-related work; or in the alternative, the Registrar shall suspend all of Respondent’s licenses (338321, 348321, 348353, and 350996) for 5 days.

It is further recommended that the Registrar require Respondent to pay the sum of $500.00 as a civil penalty pursuant to A.R.S. § 32-1154(E). No future license shall be issued to any entity consisting of persons associated with Respondent, as defined in A.R.S. § 32-1101(A)(5), unless Respondent tenders payment of any outstanding prior civil penalty.

It is further recommended that the Registrar require Respondent to pay $7,048.14 in restitution, pursuant to A.R.S. § 32-1156.01(A), for the barriers it took from Complainant.

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 9, 2024.

/s/ Samuel Fox

Administrative Law Judge

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

Tom Cole, Director

Registrar of Contractors

Lisa Melton

[email redacted]

Roberto Juarez

[email redacted]

Canyon State Barricade Service LLC

[email redacted]

By: OAH Staff