ALJDEC

01F-T0425-ROC · Registrar of Contractors · 2001-04-09

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: Wednesday, April 4th, 2001; 1:30 p.m. APPEARANCES: The complainant, G and A Refrigeration, Inc., was represented by Mr. Gary Gerovac, President. The respondent, Development Builders Management Company, was represented by Mr. Joe McCalob, Vice President. ADMINISTRATIVE LAW JUDGE: Grant Winston. _____________________________________________________________________

This matter was brought on for administrative hearing in the Office of Administrative Hearings, Tucson. Testimony was heard and other evidence admitted to record and, based on the entire record, the following Findings of Fact Conclusions of Law and Recommended Order are made. FINDINGS OF FACT 1. This matter involves a contract dispute between two licensed contractors. The respondent, Cook Enterprises, Inc., doing business as, Development Builders Management Company, is, and during all times material hereto was, a contractor, licensed by and doing business in the State of Arizona, under Class KB-01 License number 148215. 2. The subject matter of the contract was the re-setting of some air conditioner units that were not set properly by a prior contractor; running the low voltage wire to the new units; replacing all seal tight and any worn thermostat wires, and running new condensation drains on the roof of a school in Coolidge, Arizona. 3. The original contract was entered into between the parties on or about March 17th, 2000. That document itemized all the work to be performed by the complainant originally. The additional work that the complainant claims it performed was the repair and maintenance of existing equipment and general sheet metal work. The complainant’s work ceased sometime in August, 2000. 4. Complainant is claiming that it satisfactorily completed the original contract work and the additional work, and that the respondent still owes it $10,890.72 for work performed in addition to the original contract. Respondent contends that not all of the original contract work was performed, and much of the complainant’s work was below workmanship and industry standards. Respondent contends further that complainant is billing it for sheet metal which it did not order from the complainant. 5. Complainant offered into evidence three invoices as proof of what it is owed. Two of those invoices are numbered 3491 and 4152. These are allegedly for sheet metal ordered by the respondent. Complainant is claiming $7,777.22 for these invoices. However, respondent denies ordering the sheet metal. There is no written purchase order for the sheet metal, and indeed no documentary evidence of the sheet metal being ordered at all. Complainant produced a crude hand drawing of what it claimed was a sheet metal order from respondent. Complainant contended that the order was made verbally by the respondent’s President. This individual testified but could say only that “some” of this sheet metal was for the Coolidge school job, but could not quantify how much. The evidence shows that only a portion of the sheet metal, at best, was ordered by the respondent for the job in question. Respondent’s proof fails to show that it is being cheated out of $7,777.22. for the sheet metal. Nor does the evidence show out of what amount, if any, the complainant is being cheated by the respondent for sheet metal. 6. The third invoice complainant had offered into evidence was numbered 3497, and was for claimed maintenance of the HVAC equipment. The total claimed by the complainant is $3,113.50. Again, complainant offers no written evidence of a contract for this work. Complainant’s president testified that the respondent’s Secretary-Treasurer verbally ordered the work. Respondent’s evidence included a copy of its company policy that no materials or services will be approved for payment (beyond that called for in a written contract) unless such is evidenced by a purchase order number and job number issued by the respondent. Complainant could produce nothing of this. 7. Respondent produced credible evidence that not all the work compassed by the original contract was performed by the complainant. Respondent also produced credible evidence that some of the work performed by the complainant had to be redone by others at additional cost to the respondent. 8. Respondent’s evidence was that no purchase orders were ever issued for the additional invoiced work claimed by the complainant. 9. The substance of this case is that the complainant failed to produce evidence sufficient to show that it is owed a sum certain on the contract, or for any additional work over and above the contract. There is as much evidence from the respondent that the complainant is owed nothing, or owes respondent money, as there is evidence that the complainant is owed money. CONCLUSIONS OF LAW 1. This administrative hearing was held under authority of and pursuant to A.R.S. §32-1156 and A.R.S. §41-1092. 2. The respondent herein is charged in the instant Citation and Complaint with possible violations of A.R.S. §32-1154.A.7., and 11. 3. A.R.S. §32-1154.A.11. prohibits a licensed contractor from failing to pay monies in excess of $750.00 when due for materials or services rendered in connection with his operations as a contractor when he has the capacity to pay, or lacking such capacity, when he has received sufficient monies in payment for the particular job for which the services or materials were rendered. 4. There is a failure of evidence in the complainant’s case to prove a violation of A.R.S. §32-1154.A.11. Complainant does have the burden of proof in this case. The burden is to produce a preponderance of evidence (more than 50%) that the allegations it is making are true. A.A.C. R2-19- 119. See also: Culpepper v. State, 187 Ariz. 431, 930 P.2d 508 (Ct. App. 1996); Smith v. Arizona Department of Transportation, 146 Ariz. 430, 706 P.2d 756 (App. 1985) (the standard of proof is that of the “preponderance of evidence”). 5. A.R.S. §32-1154.A.7. prohibits a licensed contractor from engaging in any wrongful or fraudulent act as a contractor which results in another person being substantially injured. There is no evidence of fraud and no preponderance of evidence of any other wrongful act on the part of the respondent as a contractor in this case. RECOMMENDED ORDER In view of the foregoing Findings of Fact and Conclusions of Law, it is hereby recommended that Citation and Complaint number T01-0425, together with the complaint on which it is based, be dismissed. Done this day, April 20th, 2001.

________________________________ GRANT WINSTON Administrative Law Judge

Original transmitted by mail this ____ day of April, 2001, to:

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

By _______________________________ -----------------------

Office of Administrative Hearings 100 N. Stone Ave., Suite 704 Tucson, Arizona 85701 (520) 628-5488