ALJDEC

01F-2184-ROC · Registrar of Contractors · 2001-10-29

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: 23 October 2001 APPEARANCES: Complainant: David Wagner, Owner of Stardancer Construction (“Stardancer”); Linda Seger, employee of Stardancer. Respondent: William Scott Jenkins, Attorney for C. J. Peak Performance, Inc. (“Peak”); Joe Griffin, President, Peak; Mike Angelone, Senior Project Manager, Peak; Alan Moore, Director of engineering, Millennium Resorts; Terry Tyner, Owner, T. W. Design. ADMINISTRATIVE LAW JUDGE: Maurice McWhirter _____________________________________________________________________ Complainant filed a complaint with the Arizona Registrar of Contractors (“ROC”) alleging Respondent committed violations of certain provisions of ARS §32-1154(A), specifically subsection 7, and 11 by failing to pay certain monies alleged to be owing Complainant by Respondent. Having heard the testimony of the witnesses and having read and considered the entire record in this matter, the under-signed Administrative Law Judge now makes the following Findings of Fact and Conclusions of Law and issues the following Recommended Decision to the ROC.

FINDINGS OF FACT 1. On 18 December 2000, Complainant and Respondent entered into a contract wherein Complainant was to conducted certain woodwork refinishing work at the Regal Hotel in Scottsdale, Arizona. The contract price was $8000, and the work was to be completed very quickly (by 9 January 2001), due to the hotel requiring the work to be done before a large influx of guests that was expected right after the new year. This work was part of a much larger overall hotel renovation project that had been contracted for between Respondent and Millennium Resorts, the owner of Regal Hotel. 2. Complainant encountered difficulties in completing the work satisfactorily immediately. Respondent had requested the wood to be a stained with a Sherwin-Williams Bristol Walnut stain or equivalent. However, the condition of the wood was such that the stain would not penetrate evenly, and the resulting finish was described as inconsistent and streaked. In addition, the Sherwin-Williams stain used by the Complainant resulted in the wood turning a purplish color. Respondent restripped and refinished the wood several times in order to get the color correct and the consistency of the stain even. Complainant testified that Jay Lewis, Respondent‘s foreman on the hotel renovation job, said the work was satisfactory prior to Complainant’s being removed from the job by Respondent. 3. By 10 January 2001, the work by Respondent had still not met the approval of either the architect, Terry Tyner, nor the representative of the owner of the hotel, Alan Moore. In fact, both Ms. Tyner and Mr. Moore had demanded that Complainant be replaced as it appeared that after several attempts, they were incapable of completing the work satisfactorily and on time. Consequently, Respondent sent Complainant a 24 hour notice to cure the situation pursuant to the contract , and not having any response to the notice by Complainant within 24 hours, terminated Complainant from the job by a letter dated 11 January 2001. 4. Respondent had the work completed by Ironwood Custom Finishing, who completed the work on the first attempt to the satisfaction of Ms. Tyner and Mr. Moore within an agreed upon period of time. Mr. Griffin testified that Respondent engages almost exclusively in hotel and restaurant renovations, doing approximately 40-60 jobs per year in Arizona and California. Over the past 4 years, Respondent has entered into literally thousands of subcontracts, and has only had to terminate 3 subcontractors in that period of time. CONCLUSIONS OF LAW 1. This matter is within the jurisdiction of the ROC pursuant to ARS §32-1104 and Title 4, Chapter 9, Article 1 of the Arizona Administrative Code. 2. The ROC’s interest in this matter is regulatory and disciplinary, and the hearing in this matter is not intended to take the place of a court of general jurisdiction in determining the rights and responsibilities of the parties to the contract. The facts in this case are examined in light of their relevance to continued contractor licensure of Respondent and the alleged violations of ARS § 32-1154, specifically:

A. The holder of a license or any person listed on a license pursuant to this chapter shall not commit any of the following acts or omissions: . . .

7. The doing of a wrongful or fraudulent act by the licensee as a contractor resulting in another person being substantially injured. . . .

11. Failure by a licensee or agent or official of a licensee to pay monies in excess of seven hundred fifty dollars ($750) when due for materials or services rendered in connection with the licensee’s operation 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.

In this case, there has been no showing of a wrongful or fraudulent act being committed, or that there was a failure to pay monies when due. The contract between the parties clearly states in paragraph 3 that “payment of billings is subject to the proper performance of the Subcontractor work, and the Architect’s [Ms. Tyner], Owner’s [Mr. Moore], and Contractor’s [Respondent] approval”. The evidence adduced at hearing made it abundantly clear that Complainant was having difficulty in completing the work satisfactorily. Further, even if Jay Lewis ultimately approved Complainant’s work, payment was not due to the Complainant unless and until Ms. Tyner and Mr. Moore approved the work, which the evidence clearly showed they did not. Accordingly, no money is due under the terms of the contract. 3. The burden of proof generally at an administrative hearing falls to the Complainant. Culpepper v. Arizona Board of Nursing, 187 Ariz. 431, 930 P.2d 508 (App. 1997). Further, the standard of proof at hearing is by a “preponderance of the evidence”. Smith v. Arizona Department of Transportation, 146 Ariz. 430, 706 P.2d 756 (App. 1985). Complainant has failed to sustain the burden of proving, by a preponderance of reliable, substantial and probative evidence, that Respondent violated ARS §32- 1154(A).

RECOMMENDED DECISION It is recommended that the Arizona Registrar of Contractors dismiss this complaint.

Done this day: 29 October 2001

______________________________________ Maurice McWhirter Administrative Law Judge

Original transmitted by mail this ____ day of ____________, 2001, 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