ALJDEC

01F-2214-ROC · Registrar of Contractors · 2001-11-13

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: October 29, 2001 APPEARANCES: Complainant was represented by Ken Kelsey. Respondent was represented by Richard Porter. ADMINISTRATIVE LAW JUDGE: Gregory L. Hanchett _____________________________________________________________________ In this matter, Complainant Kelsey Refurbishing (hereinafter Complainant) alleges that Respondent RMP Construction (hereinafter Respondent) has violated A.R.S. 32-1154(A)(7)(committing a wrongful or fraudulent act that results in substantial harm to another person) and A.R.S. 32-1154(A)(11) (failure to pay monies due and owing in excess of $750.00). Based on the evidence adduced at the hearing, the following findings of fact, conclusions of law, and recommended decision are made. FINDINGS OF FACT 1. At all times pertinent to this matter, Respondent was a licensed general contractor in the state of Arizona. 2. Over the course of the last few years, Complainant has been hired by Respondent to complete subcontracts relating to refurbishing and remodeling of homes. Pertinent to this matter are subcontracts entered into by the parties which required Complainant to complete various facets of remodeling on the following jobs: the Jones job, the Statts job, the Pena job, the Chambers job, the Deming job, the Kaczor job, and the Guthrie job. 3. Complainant contends that he has not been paid the following amounts which he contends he is owed. Jones job, $1206.00, Statts job, $1849.00, Pena job, $400, Chambers job, $4087, Deming job, $1793.00, Kaczor job, $13,775.00. Complainant did not disclose a specific amount due for the Guthrie job, although the parties discussed the Guthrie job many times during testimony. With respect to the total amount owed, Complainant contended the amount was $18,439.00 (although the individual amounts claimed exceed this amount). 4. Respondent presented credible evidence to demonstrate that in each of the jobs where Complainant seeks additional amounts, the work was poorly performed or not completed and resulted in complaints to the Registrar of Contractors. Indeed, it appears form the evidence adduced that Respondent has refused to pay all of these claimed outstanding amounts because Respondent has backcharged Complainant for problems encountered due to Complainant’s poor construction on each of these jobs, amounts that could well exceed the amount Complainant claims to be due. For example, with respect to the Chambers job, Respondent presented credible evidence that because of Complainant’s poor workmanship Respondent incurred costs of that exceeded the amount due to Complainant. On the Kaczor job, Respondent incurred costs that may well exceed the amount due to Complainant. 5. On each of the jobs listed above, it is evident that there is a bona fide dispute between the parties regarding damages and backcharges that could result in Complainant not being due any money. Because of this fact, the undersigned cannot find that that money is due and owing to Complainant, a prerequisite to a finding of a violation of A.R.S. 32- 1154(A)(11). Likewise, there has been no showing, again in light of the legitimate dispute between the parties, that Respondents conduct is wrongful or fraudulent. . . . CONCLUSIONS OF LAW 1. A.R.S. §32-1154(A) provides in pertinent part:

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 . . . to pay monies in excess of seven hundred fifty dollars for materials or services rendered in connection with the licensee’s operations as a contractor when the licensee has the capacity to pay. . . * * * 2. 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). 3. Complainant has failed to sustain the burden of proving the existence of a valid liquidated debt properly due and owing by Respondent and thus has failed to sustain the burden of proving the Respondent violated A.R.S. §32-1154(A)(11). 4. The evidence does not support a finding of a violation of A.R.S. §32-1154(A)(7). RECOMMENDED DECISION In light of the foregoing, it is recommended that the Director dismiss the citation and complaint in this proceeding. . . . Done this day, November 13, 2001.

______________________________________ Gregory L. Hanchett 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 ___________________________

-----------------------

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