ALJDEC decisions subject to certification as final

06F-M2364-ROC · Registrar of Contractors · 2006-12-28

STATE OF ARIZONA IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: December 11, 2006 APPEARANCES: Complainant: Jay W. Frost, corporate officer, appeared, pro per. Respondent: Thomas P. Morrison, corporate officer and qualifying party, appeared, pro per. ADMINISTRATIVE LAW JUDGE: Brian E. Smith _____________________________________________________________________ Evidence and testimony were presented and, based on the entire record in this matter, the following Findings of Fact, Conclusions of Law and Recommended Order are made:

FINDINGS OF FACT 1. This matter was scheduled to convene for hearing on December 11, 2006 at 9:00 a.m. as set forth in the Registrar of Contractors’ Notice of Hearing dated November 3, 2006. 2. Prior to convening the hearing, Jay W. Frost (“Frost”), Complainant’s President, filed the attached correspondence with the Office of Administrative Hearings wherein he indicated Complainant’s desire to withdraw its complaint. Therein, Frost acknowledged that he “made a mistake on the job in question and have apologized to Greenspace. I accept full responsibility for the error.” 3. Due to the content of the above-referenced correspondence, it was the intention of the undersigned to issue an order vacating the hearing and recommending dismissal of the instant complaint. However, at the time set for the commencement of the hearing, representatives from both parties appeared and expressed a desire to create a record regarding the circumstances of Complainant’s mistake and to ensure that this tribunal and the Registrar of Contractors were fully cognizant of same in order that there be no adverse effect on Respondent’s license. 4. Complainant Symmetry Homes, Inc. (“Complainant”) is a corporation doing business in Arizona. Frost is a corporate officer for the company. 5. Respondent Greenspace, Inc. (“Respondent”) is a corporation which holds Arizona Contractor’s License No. 167008, Class C-21 (Residential Landscape and Irrigation Systems) issued by the Registrar of Contractors (“ROC”) on July 13, 2001. Thomas Patrick Morrison (“Morrison”) is a corporate officer and the qualifying party for the license. A review of the licensing database maintained by the ROC indicates that this license was suspended June 20 through August 6, 2003 for lack of bond and August 1 – 5, 2003 and August 1 -9, 2005 for non-renewal. 6. Complainant filed a complaint with the Registrar of Contractors (“ROC”) on May 30, 2006 wherein it alleged that Respondent agreed to leave dirt at the site of a project and failed to do so. As a result, Complainant was required to hire a third party to remove the dirt. Complainant thereafter invoiced Respondent for the cost of this work payment for which Respondent failed to remit. 7. On September 1, 2006, the Registrar issued a CITATION AND COMPLAINT in Case M06-2364 charging Respondent with possible violations of A.R.S. §32-1154A 7 and 11. 8. Respondent filed an answer on September 18, 2006 wherein it generally denied allegations pertaining to the subject project (the Savaldi residence). 9. At the hearing, Frost testified that he thought that the work complained of in the instant complaint was to be done by Respondent. However, Frost further testified that, upon consulting with his project manager, he realized he had made a mistake and determined that Complainant had improperly filed the instant complaint against Respondent. 10. Frost further advised that, given the aforementioned mistake, Complainant wished to withdraw its complaint and ensure that no adverse action, including that of a closed case, be taken on Respondent’s license. 11. Morrison concurred with the factual account as related by Frost, i.e., that Respondent never contracted with Complainant to do the work alleged in the complaint.

APPLICABLE LAW The CITATION AND COMPLAINT issued by the Registrar of Contractors charged Respondent with possible violations of A.R.S. § 32-1154A (7) and (11). Those statutory sections require that the holder of a license or person listed on the license shall not commit the following:

7. The doing of a wrongful act by the licensee as a contractor resulting in another legal excuse for the abandonment or refusal.

…

11. Failure by a licensee or agent or official of a licensee to pay monies in excess of seven hundred fifty dollars when due for materials or services rendered in connection with his operations as a contractor when he has the capacity to pay or, if he lacks the capacity to pay, when he has received sufficient monies as payment for the particular construction work project or operation for which the services or materials were rendered or purchased.

CONCLUSIONS OF LAW 1. The Registrar of Contractors has jurisdiction over this matter, pursuant to A.R.S. § 32-1101, et seq., which authorizes the Registrar to impose disciplinary sanctions against licenses for violations of A.R.S. § 32-1154. 2. To warrant such sanctions by the Registrar, Complainant must demonstrate by a preponderance of the evidence that Respondent violated any one, or more, of the statutory sections cited. Proof by a “preponderance” means that “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 B.R. 648 (9th Cir. BAP (Ariz.) 1994). See also, Culpepper v. State of Arizona, 187 Ariz. 43, 930 P.2d 508 (App. 1996). 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 (Rev. 6th ed. 1990). 3. The undersigned determines and concludes that Complainant filed the instant complaint against Respondent in error and under a mistake of fact. It is therefore further determined and concluded that, by Frost’s admission and the lack of evidence presented, Complainant failed to sustain the required burden of proving the charges set forth in the complaint by a preponderance of reliable, substantial and probative evidence. Consequently, the record does not support any finding that Respondent has violated the provisions of A.R.S. §32-1154A, as charged in the instant Citation. 4. It is further determined and concluded that there was no evidence presented by either party from which even an inference could be drawn that the parties hereto entered into a settlement agreement.

RECOMMENDED ORDER On the basis of the foregoing, IT IS RECOMMENDED that the entire Citation in Case No. 06F-m2364-ROC be dismissed.[1] Done this day, December 28, 2006.

______________________ Brian E. Smith Administrative Law Judge Original transmitted by mail this ____ day of ____________, 2006, to:

Registrar of Contractors Fidelis V. Garcia Legal Department 800 West Washington, 6th Floor Phoenix, AZ 85007

By _________________ ----------------------- [1] In the event of certification of the Administrative Law Judge Decision by the Director of the Office of Administrative Hearings, the effective date of the Order in this matter will be forty (40) days from the date of that certification.

-----------------------

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