ALJDEC

02F-M1227-ROC · Registrar of Contractors · 2002-08-12

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: July 25, 2002, at 9:00 a.m. APPEARANCES: Mark Salustro appeared on behalf of Complainant Passion Technologies, Inc. (“Passion Technologies”). Matt Sloan, Esq., represented Respondent Delta Construction Company (“Delta Construction”). ADMINISTRATIVE LAW JUDGE: Constantino Flores _____________________________________________________________________ The question presented by this matter is whether Respondent Delta Construction is subject to discipline for acts or omissions in violation of A.R.S. § 32-1154. Based on the evidence of record, the Administrative Law Judge makes the following Findings of Fact, Conclusions of Law and Recommended Order: FINDINGS OF FACT 1. Delta Construction is the holder of a Class B-02 License (No. 137619) issued by the Registrar of Contractors (“ROC”). Brad Jones is the President and General Manager. 2. On or about November 14, 2001, pursuant to an ongoing verbal contract between Passion Technologies and Delta Construction, Passion Technologies began to perform work at the future site of a Verizon Wireless (“Verizon”) store in Val Vista. 3. Passion Technologies was unable to keep the demanding “fast track” schedule imposed on Delta Construction pursuant to its contract with Verizon.

4. At some point, pursuant to Delta Construction’s inquiry, Passion Technologies admitted that it could not keep up with the demanding Verizon construction schedule, so Delta Construction hired another subcontractor to finish the work at the Val Vista store. 5. Delta Construction then back charged against Passion Technologies’ invoices for the work performed by the other subcontractor. 6. After a disagreement developed as to how much Delta Technologies should have back charged Complainant, on January 30, 2002, Passion Technologies filed a Complaint with the ROC, alleging that it was owed $2654.60 for unpaid work performed for Respondent. 7. At hearing, Mark Salustro, Passion Technologies’ representative, addressed at length the lack of documentation and professionalism demonstrated to him by Respondent during their professional dealings. However, when it came time to prove Passion Technologies’ case, Mr. Salustro’s testimony and Passion Technologies’ documentation presented were replete with inconsistencies and mistakes, which he could not reconcile. 8. The Administrative Law Judge finds that the numerous inconsistencies and mistakes contained in Mr. Salustro’s testimony, as well as in the documentary evidence presented, renders his testimony, as well as Passion Technologies’ documentation, not credible. CONCLUSIONS OF LAW 1. In this proceeding, Complainant bears the burden to prove, by a preponderance of the evidence, that Respondent Delta Construction is subject to discipline for violations of A.R.S. § 32-1154(A)(7) and/or (A)(11), a charged by the ROC in its April 17, 2002 Citation and Complaint. 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). 2. Under A.R.S. § 32-1154(A)(7), a contractor is subject to discipline for the “doing of a wrongful or fraudulent act . . . as a contractor resulting in another person being substantially injured.” 3. Under A.R.S. § 32-1154(A)(11), a contractor is subject to discipline for “failure . . . to pay monies in excess of seven hundred fifty dollars when due for materials or services rendered . . . .” 4. The Administrative Law Judge concludes that Complainant failed to meet its burden to prove that Respondent violated A.R.S. § 32-1154(A)(7) or (A)(11). 5. Because Complainant Passion Technologies failed to establish that Delta Construction violated the above mentioned sections of A.R.S. § 32-1154, it is appropriate that no discipline be imposed against Delta Construction’s license and that the Citation in this case, together with the Complaint upon which it is based, be dismissed. RECOMMENDED ORDER Based on the foregoing, the Administrative Law Judge recommends that no discipline be imposed against Delta Construction’s Class B-02 license and that the Citation in Case No. M02-1227, together with the Complaint upon which it is based, be dismissed. Recommended and dated this day, August 12, 2002

______________________________________ Constantino Flores Administrative Law Judge

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

Michael P. Goldwater, Director Registrar of Contractors 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