ALJDEC

02F-A0324-ROC · Registrar of Contractors · 2002-07-30

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

On July 25, 2002, a disciplinary hearing was held to determine if the Respondent’s license should be disciplined pursuant to A.R.S. §32-1154(A) & (B). Mr. Brent Bayne appeared on behalf of Ram Air LLC (“Complainant”). Attorney Richard Mabery represented Bedair Construction Inc. (“Respondent”). Documentary evidence and testimony were presented. Based upon a review of the entire record, the undersigned Administrative Law Judge makes the following Findings of Fact, Conclusions of Law and Recommended Order.

FINDINGS OF FACT

1. Mr. Mark Bedair is the president of ALM Enterprises and Investments Inc. (“ALM Enterprises”). Prior to May 31, 2001, ALM Enterprises entered into a contract to perform services as a general contractor on the Morgan Stanley & Dean Witter project (“Morgan Stanley Project”). On or about April 9, 2001, the City of Prescott issued a construction permit to ALM Enterprises for the Morgan Stanley Project. See Respondent’s Exhibit E. ALM Enterprises is listed as the general contractor on the construction permit. Id. Mr. Mark Bedair signed the construction permit on behalf of ALM Enterprises. Id.

2. On May 31, 2001, the Registrar of Contractors (“ROC”) revoked ALM Enterprises’ Class KB-01 license. See Complainant’s Exhibit 6.

3. On September 10, 2001, ALM Enterprises and the Complainant entered into a written contract (“Contract”) requiring the Complainant to install air conditioning, heating and humidification equipment at the Morgan Stanley Project. See Complainant’s Exhibit 1. Mr. Mark Bedair signed the Contract on behalf of ALM Enterprises. Id. Mr. Mark Bedair conceded that he signed the Contract knowing that ALM Enterprises’ Class KB-01 license had been revoked on May 31, 2001.

4. On September 10, 2001, the Complainant performed the installation services at the Morgan Stanley Project. Mr. Mark Bedair testified that he was unhappy with the Complainant’s work. Mr. Mark Bedair testified that ALM Enterprises had to hire another contractor to correct the Complainant’s installation work. On November 15, 2001, ALM Enterprises sent a check to the Complainant for the installation services performed by the Complainant at the Morgan Stanley Project. See Complainant’s Exhibit 2. Mr. Mark Bedair testified that he deducted (from the check) the amount that ALM Enterprises paid to the other contractor to correct the Complainant’s work.

5. Mr. Brent Bayne is the Complainant’s Managing Member. Mr. Bayne testified that the Complainant properly performed the installation services at the Morgan Stanley Project. Mr. Bayne testified that the Complainant cashed the aforementioned check from ALM Enterprises. See Complainant’s Exhibit 2. However, Mr. Bayne testified that he wrote “Partial Payment” on the check because the Complainant is still owed over $1,200.00 on the Contract. Id.

6. On November 15, 2001, Mr. Bayne (on behalf of the Complainant) signed a Waiver of Lien regarding the services performed by the Complainant at the Morgan Stanley Project. See Respondent’s Exhibit B. The Waiver of Lien stated that the Complainant had been “paid in full for all labor, services, equipment or material furnished at the jobsite or to ALM Enterprises Inc. on the job of Morgan Stanley Dean Witter . . . .” Id.[1]

7. On or about May 3, 2002, the Complainant filed a Small Claims Complaint in the Prescott Justice Court against ALM Enterprises for the amount owed on the Contract. See Respondent’s Exhibit C.

8. On January 11, 2002, the Complainant filed a Complaint with the Registrar of Contractors (“ROC”) against the Respondent alleging that the Respondent only partially paid for the installation services performed by the Complainant at the Morgan Stanley Project. Mr. Bayne testified that he filed the Complaint against the Respondent (instead of ALM Enterprises) because he had obtained information that Mr. Mark Bedair was working for the Respondent when he signed the Contract.

9. Mr. Mark Bedair testified that he was not working for the Respondent when ALM Enterprises entered into the Contract. Mr. Mark Bedair testified that he was working for ALM Enterprises when he signed the Contract. Mr. Mark Bedair testified that the Respondent never negotiated or signed the Contract. Mr. Mark Bedair testified that the Contract only involved ALM Enterprises and the Complainant.

10. Mr. Mark Bedair testified that ALM Enterprises was the general contractor on Phase One of the Morgan Stanley Project. Mr. Mark Bedair testified that the Respondent became the general contractor on Phase Two of the Morgan Stanley Project. Mr. Mark Bedair testified that Phase One and Phase Two were completely separate projects. Mr. Mark Bedair testified that the Complainant performed the installation services prior to Phase Two of the Morgan Stanley Project.

11. Mr. Robert Bedair is the father of Mr. Mark Bedair. He is also the Respondent’s president and qualifying party. Mr. Robert Bedair testified that the Respondent never negotiated or signed the Contract. Mr. Robert Bedair testified that the Respondent never hired the Complainant to perform the installation services at the Morgan Stanley Project. Mr. Robert Bedair testified that the Respondent became the general contractor on Phase Two of the Morgan Stanley Project.[2] Mr. Robert Bedair testified that the Complainant performed the installation services prior to Phase Two of the Morgan Stanley Project.

12. The undersigned Administrative Law Judge finds that the Complainant and ALM Enterprises entered into the Contract. The undersigned Administrative Law Judge finds that the Respondent never negotiated, signed or executed the Contract.

CONCLUSIONS OF LAW 1. 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).

2. The undersigned Administrative Law Judge concludes that the preponderance of the evidence shows that the Respondent has not violated A.R.S. §32-1154(A)(7) & (11). The Respondent was never a party to the Contract. The Respondent never negotiated, signed or executed the Contract. Accordingly, the Respondent cannot be found liable under the Contract.

3. The undersigned Administrative Law Judge concludes that grounds do not exist to discipline the Respondent’s Class B-01 license pursuant to A.R.S. §32-1154.

RECOMMENDED ORDER Based upon the foregoing, the undersigned Administrative Law Judge recommends that the entire Citation and Complaint in Case Number A02-0324 be dismissed. Done this day, July 31, 2002.

______________________________________ Casey J. Newcomb Administrative Law Judge

Original transmitted by mail this ____ day of July, 2002, to:

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

By ___________________________

----------------------- [1] The Waiver of Lien also stated that the Complainant did not waive the disputed amount between the Complainant and ALM Enterprises. [2] On October 30, 2001, the City of Prescott issued a construction permit to the Respondent for Phase Two of the Morgan Stanley Project. See Respondent’s Exhibit F.

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