ALJDEC - Licensing
2024A-06905-NPC-ROC · Registrar of Contractors · 2024-09-24
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
SUN OF TUCSON PLASTERING, LLC
COMPLAINANT,
v.
Optimum Builders and Design LLC
License No. ROC 258583,
RESPONDENT.
No. 2024A-06905-NPC-ROC
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: September 4, 2024
APPEARANCES: German Yusufov, Esq. represented SUN OF TUCSON PLASTERING, LLC (Complainant). Jeremy Scott represented Optimum Builders and Design LLC (Respondent).
ADMINISTRATIVE LAW JUDGE: Velva Moses-Thompson
EXHIBITS ADMITTED INTO EVIDENCE: Complainant’s Exhibits 1 through 3.
_____________________________________________________________________
FINDINGS OF FACT
1. On or about August 22, 2022, Complainant and Respondent entered into a construction project wherein Complainant agreed to perform stucco work for Respondent at 3875 N. Avenida Dos Vistas (the project). According to the contract, Complainant would furnish all labor and materials for the project. The contract included the following provision:
All the work is to be completed in a substantial and workmanlike manner for the sum of Ninety-Give Thousand Three Hundred Ninety-Five Dollars 00/100 ($95,395.00). Payment to be made 20% ($19,070.00) BEFORE start of the project for material to be ordered, 25% ($23, 848.75) once lath is started, 27.5% ($26,233.63) when brown coat is finished 27.5% ($26,233.63) when paint/project is done. The entire amount of the contract is to be paid when job is completed.
2. The owner of the home is Quinn McCullough.
3. On or about June 17, 2024, Complainant filed a complaint against Respondent alleging that Respondent failed to pay Complainant $23,928.75 when payment became due.
4. On July 12, 2024, the Registrar issued a Citation against Respondent’s license alleging that Respondent had violated Arizona Revised Statutes (A.R.S.) § 32-1154(A)(10).
5. Respondent filed a timely answer to the Citation. Respondent stated in its answer that it did not pay Complainant because Complainant’s work did not meet minimum workmanship standards.
6. The matter was referred to the Office of Administrative Hearings for an evidentiary hearing.
7. A hearing was held on September 4, 2024.
8. At hearing, Efrain Rodriguez, Complainant’s qualifying party, testified on behalf of Complainant. Respondent presented the testimony of its qualifying party, Jeremy Scott. Abel Serino and Mr. McCullough also testified on behalf of Respondent.
9. Mr. Rodriguez explained that he completed the brown coat on or around May 8, 2024, but he was not paid by Respondent. Mr. Rodriguez started the job in August of 2023. Mr. Rodriguez stated that stucco cannot be completely uniform and the contract include a provision addressing this issue. Mr. Rodriguez also testified that he applied the finish coat.
10. On May 14, 2024, Mr. Scott notified Mr. Rodriguez that he was not satisfied with Complainant’s work and that Complainant’s work did not meet the minimum workmanship standards of the Registrar.
11. Respondent subsequently filed a complaint with the Registrar alleging that Complainant performed poor work in connection with the project.
12. On August 28, 2024, the Registrar issued a Directive to Complainant. The Directive that shows that the Registrar’s Investigator, Gregory Johndrow, found that Complainant’s stucco work failed to meet minimum workmanship standards because the stucco was too thin, the wire lath was visible, and the cracks in the stucco that exceeded the allowable tolerance. See Complainant’s Exhibit 3.
13. Complainant’s counsel contended that Respondent could not withhold payment from Complainant under the Prompt Pay Act because Respondent failed to provide timely written notice to Complainant that it intended to withhold payment based on deficient work. However, there was no evidence submitted at hearing that Respondent received payment for the owner for the brown coat. Mr. McCullough testified at the hearing that Complainant’s work was unsatisfactory.
CONCLUSIONS OF LAW
The Registrar has jurisdiction over this matter, pursuant to A.R.S. § 32-1101, et seq., which authorizes the Registrar to impose disciplinary sanctions against licenses for violations of A.R.S. § 32-1154.
To warrant such sanctions by the Registrar, Complainant must demonstrate by a preponderance of the evidence that Respondent violated the statutory section cited. Proof by a “preponderance” means that “the evidence is sufficient to persuade the finder of fact that the proposition is more likely true than not.” In re: Arnold and Baker Farms, 177 B.R. 648 (9th Cir. BAP (Ariz.) 1994). See also Culpepper v. State of Arizona, 187 Ariz. 431, 930 P.2d 508 (App. 1996). It is “evidence which is of greater weight or more convincing than the evidence which is offered in opposition to it; that is, evidence which as a whole shows that the fact sought to be proved is more probable than not.” Black’s Law Dictionary 1182 (Rev. 6th ed. 1990).
3. The preponderance of the evidence presented at hearing shows that the Registrar’s investigator found that Complainant’s stucco work was not completed in a workmanlike manner. The weight of the evidence presented at hearing shows that Respondent was not required to pay Complainant until Complainant completed the brown coat. Furthermore, the contract between the parties required all work to be substantially completed in a workmanlike manner. Therefore, the Administrative Law Judge concludes that payment for the brown coat did not become due pursuant to the contract. Upon consideration of the evidence presented at hearing, this Tribunal concludes that the preponderance of the evidence of record is insufficient and fails to support a conclusion that Respondent violated A.R.S. § 32-1154(A)(10).
RECOMMENDed order
In view of the foregoing, it is recommended that this matter 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, September 24, 2024.
/s/ Velva Moses-Thompson
Administrative Law Judge
Transmitted by either mail, e-mail, or facsimile to:
Tom Cole, Director
Registrar of Contractors
German Yusufov
Yusufov Law Firm PLLC
[email redacted]
SUN OF TUCSON PLASTERING, LLC
[email redacted]
Optimum Builders and Design LLC
[email redacted]
By: OAH Staff