ALJDEC

00F-1425-ROC · Registrar of Contractors · 2000-04-28

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

On April 28, 2000, a hearing was held to determine if the Respondent had violated provisions of A.R.S. §32-1154(A). Mr. Greg Dominguez appeared on behalf of the Complainant. Mr. Dan Ardelean appeared on behalf of the Respondent. Evidence and testimony were presented. Based upon a review of the entire record, the following Findings of Fact, Conclusions of Law and Recommended Decision are made.

FINDINGS OF FACT 1. Mr. Greg Dominguez is the sole owner of Dominguez Excavation (the “Complainant”). Mr. Dan Ardelean is the president and qualifying party of Gold Star Builders, Inc. (the “Respondent”).

2. On or about October 18, 1999, the parties entered into an oral contract (“Contract”) for the Complainant to perform excavation work at 4902 E. Butler Drive, Paradise Valley, Arizona (the “Home”). Mr. Dominguez testified that the Contract was not in writing because he had successfully performed work for the Respondent in the past without a written contract. Mr. Dominguez and Mr. Ardelean both testified that the Complainant was required to perform the excavation work for $2,250.00. However, the parties disagreed on the terms (i.e., description of work) of the oral Contract.

3. Mr. Dominguez testified that the parties agreed that the Complainant would remove the footings and concrete floor from the demolished Home. Mr. Dominguez testified that Mr. Ardelean told him to place the concrete and debris (i.e., dirt, garbage and wood) in piles. Mr. Dominguez testified that Mr. Ardelean told him that it did not matter if the concrete and debris were combined in the piles.

4. Mr. Dominguez testified that he paid $1,129.83 for the machinery to remove the footings and concrete floor from the Home. Mr. Dominguez testified that it took two days to complete the job. Mr. Dominguez testified that Mr. Ardelean paid him only $800.00 for completing the job. Mr. Dominguez testified that he deserves $1,450.00 for the balance of the amount agreed upon pursuant to the oral Contract.

5. Mr. Ardelean testified that the parties agreed that the Complainant would (1) remove the footings and the concrete floor from the Home; (2) place the concrete in one pile and the debris in a separate pile; (3) remove the two piles to a landfill; and (4) level the remaining dirt at the Home.

6. Mr. Ardelean testified that the Complainant removed the footings and the concrete floor at the Home. However, Mr. Ardelean testified that the Complainant failed to place the concrete and the debris in separate piles. Mr. Ardelean further testified that the Complainant failed to haul away the concrete and debris. Mr. Ardelean testified that the Complainant also failed to level the dirt at the Home. Accordingly, Mr. Ardelean testified that he only paid the Complainant $800.00 for partial performance on the oral Contract.

7. Mr. Ardelean testified that he had to hire Dave’s Construction Service, Inc. to complete the Complainant’s job. See Appellant’s Exhibit A. Mr. Ardelean testified that he paid Dave’s Construction Service $5,000.00 to remove the two piles of concrete and debris from the Home. Mr. Ardelean testified that the cost of removing the two piles soared because the concrete and debris were mixed. Mr. Ardelean testified that the concrete and the debris had to be separated before being hauled away.

8. The undersigned Administrative Law Judge finds the testimony of Mr. Dominguez and Mr. Ardelean to be equally credible. The undersigned Administrative Law Judge further finds that there was not a “meeting of the minds” on the description of the work to be performed by the Complainant pursuant to the oral Contract. Unfortunately, the parties failed to draft and sign a written contract.

CONCLUSIONS OF LAW

1. The Complainant has the burden of proof, and the standard of proof on all issues is by a preponderance of the evidence. Culpepper v. State, 187 Ariz. 431, 930 P.2d 508 (App. 1996). A "preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not." Morris K. Udall, Arizona Law of Evidence, §5 (1960). 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 (6th ed. 1990).

2. The undersigned Administrative Law Judge concludes that the preponderance of the evidence shows that the Respondent has not violated A.R.S. §32-1154(A)(7) & (11). The parties failed to draft and sign a written contract specifically setting forth the agreement between the parties. Without a written contract, the undersigned Administrative Law Judge must determine the terms of the oral Contract based upon the testimony of Mr. Dominguez and Mr. Ardelean. The undersigned Administrative Law Judge has already determined that the testimony of Mr. Dominguez and Mr. Ardelean were equally credible at the hearing in this matter. In short, the undersigned Administrative Law Judge concludes that there simply was not a “meeting of the minds” or a legally binding agreement or contract between the parties. Accordingly, the Complainant has failed to meet his burden of showing that the Respondent’s license should be disciplined. The undersigned Administrative Law Judge concludes that grounds do not exist to discipline the Respondent’s Class B license pursuant to A.R.S. §32-1154.

RECOMMENDED DECISION Based upon the foregoing, the undersigned Administrative Law Judge recommends that the entire Citation and Complaint in Case Number 00-1425 be dismissed.

Done this day, May 4, 2000

______________________________________ Casey J. Newcomb Administrative Law Judge

Original transmitted by mail this ____ day of May, 2000, to:

Michael P. Goldwater Registrar of Contractors Attn: Joyce Armijo 800 West Washington, 6th Floor Phoenix, AZ 85007

By ___________________________

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Office of Administrative Hearings 1400 West Washington, Suite 101 Phoenix, Arizona 85007 (602) 542-9826