ALJDEC

01F-0233-ROC · Registrar of Contractors · 2000-12-05

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: November 30, 2000. APPEARANCES: Jerry Tuccino, Complainant’s representative; and David Bohner, Respondent’s representative. ADMINISTRATIVE LAW JUDGE: Dorinda M. Lang. _____________________________________________________________________ Complainant has established by the weight of the evidence that Respondent has not paid him $550 for work performed under a contract between the parties. This does not constitute a violation of any of the statutes and rules applicable to the Registrar of Contractors. Therefore, I recommend that this complaint be dismissed and that the Registrar of Contractors decline to discipline Respondent’s license. FINDINGS OF FACT 1. On September 27, 1999, Tuccino Brothers Plastering contracted with North Valley Plumbing, Inc. to lathe a home. The amount of the contract was $7,000. Tuccino Brothers Plastering completed the job. Respondent paid $4,200 on February 18, 2000 and $2,250 on June 8, 2000, for a total of $6,450 paid on the contract. 2. Tuccino Brothers Plastering filed a complaint with the Registrar of Contractors on July 21, 2000 alleging non-payment for work completed in the amount of $1,550. North Valley Plumbing argues that delays in completing the work and failure to complete touch-ups in a timely manner caused Respondent to lose money, apparently arguing that any amounts due should be offset by the amount of those costs. 3. Respondent also testified that, although it did not dispute the amount in an earlier correspondence, reference to the company checkbook confirmed that $6,450 had been paid and Respondent owed only $550 on the contract, if anything. Complainant did not provide any further evidence of the amount owed. CONCLUSIONS OF LAW 1. This matter is within the jurisdiction of the Registrar of Contractors pursuant to A.R.S. §§32-1104(A)(4), 32-1154(B) and 32-1156. 2. The Citation and Complaint issued by the Registrar of Contractors in this matter alleged potential violations of A.R.S. §32-1154(A) (7) and (11). 3. The Arizona Revised Statutes at §32-1154(A)(7) provides for suspension or revocation of a contractor’s license for the “doing of a wrongful or fraudulent act by the licensee as a contractor resulting in another person being substantially injured”. 4. The Arizona Revised Statutes at §32-1154(A)(11) provides grounds for suspension or revocation of a contractor’s license for failure to pay monies in excess of $750 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 project. 5. The burden of proof at an administrative hearing is generally upon the Complainant. Utah Construction Company v. Berg et al, 68 Ariz. 285, 205 P.2d 367 (1949). Further, the standard of proof at hearing is a “preponderance of the evidence”. Smith v. Arizona Dept. of Transportation, 146 Ariz. 430, 706 P.2d 756 (App. 1985). 6. In this case, Respondent provided the more certain and specific evidence regarding the amount of money still owed on the project. The weight of the evidence is, therefore, that Respondent owed $550, if anything, to Complainant. Therefore, regardless of any argument to offset the amount due, there is no violation of A.R.S. § 32-1154(A)(11), as the amount is insufficient to qualify as a violation. Further, Complainant has not provided sufficient evidence of “substantial injury”, so a violation of A.R.S. § 32-1154(A)(7) may not be found either. RECOMMENDED DECISION Based upon the foregoing, I recommend that the Registrar of Contractors decline to discipline Respondent’s license in this case and dismiss this complaint. Done this day, December 6, 2000. OFFICE OF ADMINISTRATIVE HEARINGS

______________________________________ Dorinda M. Lang Administrative Law Judge

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

Registrar of Contractors Michael P. Goldwater 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