ALJDEC decisions subject to certification as final

06F-M2553-ROC · Registrar of Contractors · 2007-02-26

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: February 22, 2007 APPEARANCES: Complainant appeared on his own behalf and Respondent appeared through its member, Kevin Durrant (“Kevin”). ADMINISTRATIVE LAW JUDGE: Mark A. Silver _____________________________________________________________________

Evidence and testimony were presented and, based upon the entire record in this matter, the following Findings of Fact, Conclusions of Law, and Recommended Order are made:

FINDINGS OF FACT

1. Complainant filed the instant complaint with the Registrar of Contractors, claiming that Respondent owes him money for work performed on a new home construction project. Respondent denies any responsibility for the money claimed by Complainant and the issues surrounding this claim are discussed in the findings below.

2. The following salient facts were adduced at the hearing and are important to note:

a. On or about January 2004 Respondent entered into a contract with the owner of the property located at 8540 E. McDowell, in Mesa Arizona for the construction of a new home. The owners of the property in question are Joe and Marsha Manning (“Mannings”) b. Prior to entering into the above-described contract with Respondent, the Mannings had already purchased their lot, prepared the plans and specifications for the construction of the home, and obtained the necessary permit from the local building authority. c. Kevin testified that the contract between the Mannings and Respondent, merely required Respondent to act as a construction manager for the construction of the home. In this capacity, Respondent would put the construction work out for bid with subcontractors and supervise the entire project. However, all payment arrangements would be handled between the various subcontractors and the Mannings. d. Respondent testified that all subcontractors on the project were, in fact, paid directly by the Mannings and that Respondent had no role in paying the subcontractors. e. Respondent contacted Complainant to present a bid to perform the plumbing on the project. Complainant prepared a formal written “proposal and contract.” The proposal offered a contract price of $23,540.00. The “proposal and contract” was entered into evidence, as Respondent’s exhibit “C.” f. The proposal shows that it was signed and accepted by Marsha Manning on March 22, 2004. In addition, under the category “Terms of Acceptance,” in paragraph no. 7, it provides that “this proposal will become a contract between Contractor and the party signing below (the customer)…” Respondent ultimately notified Complainant that he was retained for the plumbing portion of the project. g. Complainant completed the plumbing work. He testified that he was to be paid in three progress payments. It was undisputed that he was paid by the Mannings for progress payments one and two. However, due to an accounting glitch, Complainant failed to bill the Mannings for the final phase of the plumbing project. Complainant’s error, in this regard, was not found by Complainant until a significant period of time had passed after the plumbing work was completed. h. After discovering his error, in regard to the fact that he had failed to bill the Mannings for the remaining contract balance of $8,050.46, Complainant immediately mailed the final billing to the Mannings. Complainant received no response back from the Mannings, despite the fact that he attempted on several occasions to send them the final billing. Among other attempts, Complainant mailed the Mannings a certified letter containing the final billing, which they failed to accept for delivery. i. Ultimately, when the Mannings failed to make the final payment for the plumbing work, Complainant filed the instant Complaint with the Registrar of Contractors against Respondent, claiming that he had a verbal agreement with Respondent to perform the plumbing work and Respondent was the general contractor on the project. Therefore, according to Complainant, Respondent should be ultimately responsible to assure all payments on work performed on the new home construction project. j. Contrary to Complainant’s position, Kevin testified at the hearing that any payment problems that Complainant has must necessarily be taken up with the Mannings, since Respondent had not signed the contract with Complainant and had no obligation to pay Complainant for the plumbing work performed.

3. Although Respondent holds a general contractor’s license and general contractors are normally responsible for paying their subcontractors, the evidence presented showed that the Mannings, not Respondent, were responsible for paying the subcontractors directly. Respondent was merely the construction manager on the project, who was responsible for moving the project forward and assuring that the work performed was performed properly.

4. Merely because Respondent recommended subcontractors to the Mannings and was responsible for the quality of their work, did not serve to shift the contractual responsibility of the Mannings to pay the subcontractors for their work. Respondent was not acting in the capacity of an insurer to guarantee payment from the Mannings. Moreover, Complainant received all prior progress payments from the Mannings and thus, was placed on notice during his performance of the plumbing work that the payment for his services was coming from the Mannings, not Respondent.

5. The question presented herein is whether or not Complainant is owed any additional money on this project and who is responsible for paying any money that is shown to be properly due and owing. The weight of the evidence of record demonstrated that if any additional money is owed to Complainant, it is the Mannings, not Respondent, which owes such funds. Thus, Complainant failed to sustain the requisite burden of proof necessary to establish that Respondent had any obligation to pay on the plumbing work performed. Nothing in the ruling set forth herein shall serve to prevent Complainant from seeking relief against the Mannings in a civil court of competent jurisdiction.

CONCLUSIONS OF LAW

1. Complainant has the burden of proof and must establish statutory violations by a preponderance of the evidence. A.A.C. R2-19-119. Proof by “preponderance of the evidence” means that it 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, 654 (9th Cir. BAP (Ariz.) 1994). 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).

2. Complainant failed to sustain his burden of proof to establish that Respondent violated the applicable charged sections of the State’s Contracting laws. Therefore, the evidence of record did not sufficiently sustain a finding of violations by Respondent of the provisions of A.R.S. §32-1154A, as charged in the Citation.

RECOMMENDED ORDER

Based on the foregoing, it is hereby recommended that this Citation (no. M06-2553), together with the Complaint upon which it is based, be dismissed. 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.

Done this day, February 26, 2007.

______________________________________ Mark A. Silver Administrative Law Judge

Original transmitted by mail this ____ day of ____________, 2007, to:

Registrar of Contractors Fidelis V. Garcia Legal Department 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