ALJDEC

01F-M1253-ROC · Registrar of Contractors · 2001-09-14

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: September 13, 2001. APPEARANCES: Craig Payne appeared on behalf of Complainant. Gene Valdini appeared on behalf of Respondent. ADMINISTRATIVE LAW JUDGE: Gregory L. Hanchett _____________________________________________________________________ In this matter, Complainant alleges that Respondent licensee has violated A.R.S. §32-1154(7) (committing a wrongful or fraudulent act that results in substantial injury to another) and A.R.S. §32-1154(11) (failure of a licensee to pay an amount of $750.00 or more when due and owing when the licensee has the capacity to pay). Because Complainant has failed to demonstrate that Respondent had any contractual obligation to pay any of the amounts claimed, the undersigned recommends that the complainant and citation in this matter be dismissed. FINDINGS OF FACT 1. Both Complainant and Respondent are properly licensed contractors in the State of Arizona. 2. This incident stems from a dispute involving excavation and backfilling services which Complainant rendered upon lots 92 and 99 in the Mogollon Ranch subdivision located near Pine, Arizona. 3. Complainant entered into separate verbal contracts with the owners of Lot 92, the Scannells, and the owners of Lot 99, the Wittes, to complete extensive amounts of excavation in and around lots 92 and 99. The Respondent was the general contractor for the homes built on Lots 92 and 99. 4. At the hearing, Complainant conceded that with respect to Lot 92, his contract for work was entered into with the owner, not Respondent. Complainant asserts that with respect to Lot 99, he had a verbal contract with Respondent to complete the excavation work. However, under cross- examination, he was unable to articulate the particulars of his alleged verbal contract with the Respondent for the work on Lot 99. The evidence introduced at the hearing, in particular Exhibit #9 (Invoice #200-10211 dated October 20, 2000 for the work completed on Lot 99), is addressed to the owner of that lot, Brad Witte, and not to Respondent. Furthermore, Respondent’s testimony, which the undersigned finds to be credible and supported by the other documentary evidence adduced in this case, is unequivocal: the work for which Complainant seeks reimbursement was undertaken pursuant to a verbal contract between Complainant and the owner of Lot 99. Thus, there is no substantial evidence to demonstrate that Respondent had any contractual or any other legal obligation to Complainant to pay for any of the work for which Complainant wishes to be paid. 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 any contractual agreement that would render Respondent liable for any debt for which Complainant seeks recovery. Complainant may well have a cause of action against the homeowners with whom he contracted, but that is not the issue in this matter. Accordingly, no violation of either A.R.S. §32-1154(A)(7) or A.R.S. §32-1154(A)(11) can be sustained in this matter. RECOMMENDED DECISION In light of the foregoing, it is recommended that the Director dismiss the citation and complaint in this proceeding. Done this day, September 14, 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