ALJDEC decisions subject to certification as final

05F-G0208-ROC · Registrar of Contractors · 2005-01-13

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: January 4, 2005 APPEARANCES: Sal Morace, owner of Dwelling Concepts (“Complainant”), appeared on behalf of Complainant. D L Withers Construction, L.L.C. (“Respondent”) was represented by Chris R. Baniszewski. ADMINISTRATIVE LAW JUDGE: Michael L. Barth _____________________________________________________________________ Findings of Fact 1. Respondent was cited by the Registrar of Contractors for violating A.R.S. § 32-1154(A)(1) and (7). 2. It was undisputed that Complainant entered into a contract with Respondent’s subcontractor, Steel Specialists, in which Complainant agreed for a price of $25,000.00 to perform steel detailing work (preparation of drawings of the steel fabrication and erection details) for the Dysart High School, Phase 3 project. 3. It was undisputed that during the course of construction of the project, Steel Specialists went out of business. 4. Complainant contended that Respondent failed to pay monies when due for services it rendered in connection with Respondent’s construction operation and in doing so, abandoned a contract with it and committed a wrongful act. 5. Prior to the hearing, Respondent filed a Motion to Dismiss for the reason that it did not have a contractual relationship with Complainant. Said Motion was addressed at the hearing as a preliminary manner and taken under advisement. 6. Mr. Morace admitted that Respondent never expressly promised, either orally or in writing, to pay Complainant for work it performed on the project. Complainant, nevertheless, contended on the basis of the following undisputed facts that Respondent was contractually liable for payment of monies allegedly owed to Complainant by Steel Specialists for steel detailing work performed by Complainant on the project per Complainant’s contract with Steel Specialists: a. Respondent, as the general contractor on the project, benefited from Complainant’s work, having indirectly approved and accepted Complainant’s steel detail work. b. Respondent issued a joint check to it and Steel Specialists for payment of work on the project. c. A preliminary lien notice had been issued by Complainant on the property being improved. 7. Complainant failed to cite any legal authorities holding that any of the foregoing circumstances give rise to a legal obligation on the part of a general contractor, contractual or otherwise, to pay monies allegedly owed to a subcontractor on a contract to which the general contractor was not a party. 8. In view of the foregoing, this tribunal finds that Complainant failed to demonstrate the existence of a legal obligation on the part of Respondent, contractual or otherwise, for payment of monies allegedly owed by Steel Specialists to Complainant for work performed by Complainant on the project per its contract with Steel Specialists. 9. Having failed to demonstrate the existence of such an obligation, Complainant failed to demonstrate that in refusing to pay the monies allegedly owed to Complainant by Steel Specialists on the foregoing contract, Respondent had either abandoned a contract with Complainant or committed a wrongful act. Conclusions of Law 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.” Smith v. Arizona Department of Transportation, 146 Ariz. 430, 706 P.2d 756 (App. 1985); see also 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). The evidence taken as a whole must convince the decision maker that the party who bears the burden, in this case Complainant, is more probably correct on the issue(s) in dispute. 2. Observing the aforementioned standard, Complainant has failed to meet its burden of proof as the record is devoid of facts and law demonstrating the existence of a legal obligation on the part of Respondent, contractual or otherwise, to pay monies allegedly owed to Complainant for work it performed per its contract with Steel Specialists. Having failed to do so, Complainant failed to demonstrate that Respondent violated A.R.S. § 32-1154(A)(1) or (7). Recommended Order In view of the foregoing, it is recommended that Case No. G05-0208 be dismissed. Done this day, January 12, 2005.

______________________________________ Michael L. Barth Administrative Law Judge

Original transmitted by mail this ____ day of ____________, 2005, 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