ALJDEC decisions subject to certification as final

04F-2317-ROC · Registrar of Contractors · 2004-12-06

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: November 29, 2004 APPEARANCES: Edwiges Hernandez, President of Chihuahua Tile, Inc. (“Complainant”), appeared on behalf of Complainant. An interpreter was provided for Mr. Hernandez. Ted Bradford, an employee of Pop’s Tile, L.L.C. (“Pop’s “) and former member of Bradford Tile, L.L.C. (“Bradford Tile”), appeared on behalf of Pop’s and Bradford Tile. ADMINISTRATIVE LAW JUDGE: Michael L. Barth _____________________________________________________________________ Findings of Fact 04F-2317 and 04F-2317W 1. Complainant filed a Complaint against Ted Bradford and License No. 188856, alleging a failure to pay monies in the amounts of $1,103.40 and $2,105.84 for tile work performed on or about October 24, 2003 and December 13, 2003, respectively. 2. On the basis of Complainant’s Complaint, the Registrar of Contractor’s cited both Pop’s, the holder of License No. 188856 and Mr. Bradford’s former company, Bradford Tile for violating A.R.S. § 32- 1154(A)(7) and (11). 3. Taking administrative notice of the official records of the Registrar of Contractors, this tribunal finds that the license held by Mr. Bradford’s company, Bradford Tile, was cancelled on September 15, 2003 and that Mr. Bradford is not listed as principal or qualifying party on Pop’s license. 4. Documents presented by Complainant in support of its claim of non-payment, which included balance sheets, floor plans, payment stubs and copies of cancelled checks did not demonstrate that the monies claimed by Complainant to be owed for tile work had not been paid. 04F-2317W 5. Bradford Tile asserted that Bradford Tile had not contracted Complainant to perform the work at issue. Bradford Tile’s assertion was not disputed by Complainant. 6. Pop’s admitted that it had contracted Complainant to perform the tile work at issue but disputed that monies owed for the tile work at issue had not been paid to Complainant. 7. Given Complainant’s failure to rebut Bradford Tile’s assertion of not having contracted Complainant to perform the tile work at issue and Pop’s admission that it had contracted Complainant to perform the tile work at issue, this tribunal finds that Bradford Tile was not legally responsible for payment of monies claimed to be owed. 04F-2317 8. Mr. Hernandez and his son, Ricardo Hernandez, both testified that Complainant had not been paid monies owed for tile work performed by Complainant. 9. Mr. Bradford testified that all monies owed by Pop’s to Complainant for tile work performed on the projects at issue had been paid in full. 10. Given the competing testimony presented by the parties in support of their respective positions on the issue of whether Pop’s failed to pay monies when due for services and materials rendered by Complainant in connection with Pop’s construction operation and the inability of this tribunal to discern the testimony of either party’s witnesses to be manifestly untruthful, this tribunal finds the testimony presented on behalf of both parties to be equally credible. 11. Having found the testimony presented on behalf of both Complainant and Pop’s to be equally credible, this tribunal further finds neither party’s presentation of evidence on the issue of whether Pop’s failed to pay monies when due for services and materials rendered by Complainant in connection with Pop’s construction operation to outweigh the other. Conclusions of law 04F-2317 1. The burden of proof generally at an administrative hearing falls to the party asserting a claim, right or entitlement or seeking to impose a penalty. A.A.C. R2-19-119(B). Further, the standard of proof is that of the “preponderance of the evidence.” A.A.C. R2-19-119(A). This standard is not met unless the evidence is sufficient to persuade the finder of fact that the proposition is “more likely true than not.” In re Arnold and Baker Farms, 177 Bankr. 648, 654 (Bankr. 9th Cir. 1994). Accordingly, the evidence taken as a whole must convince the decision maker that the party who bears the overall burden of persuasion, in this case the Complainant, is more probably correct on the issue(s) in dispute. 2. Observing the aforementioned standards, Complainant has failed to carry its burden of demonstrating that, by a preponderance of the evidence, Pop’s failed to pay monies when due for services and materials rendered by Complainant in connection with Pop’s construction operation. Having failed to do so, Complainants failed to demonstrate that Pop’s violated A.R.S. § 32-1154(A)(11) or committed a wrongful act in violation of A.R.S. § 32-1154(A)(7). 04F-2317W The evidence of record reveals that Bradford Tile did not violate A.R.S. § 32-1154(A)(7) or (11). Recommended Order 04f-2317 In view of the foregoing, it is recommended that Case No. 04-2317 be dismissed.

04-2317W In view of the foregoing, it is recommended that Case No. 04-2317W be dismissed. Done this day, December 6, 2004

______________________________________ Michael L. Barth Administrative Law Judge

Original transmitted by mail this ____ day of ____________, 2004, to:

Registrar of Contractors Israel G. Torres ATTN: Jennifer Brown 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