ALJDEC decisions subject to certification as final

06F-T1196-ROC · Registrar of Contractors · 2006-12-21

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: December 11, 2006, at 1:30 p.m. APPEARANCES: The Complainant appeared through its authorized representative, Aaron Sluder. The Respondent appeared through its attorney, Michael Schern. . ADMINISTRATIVE LAW JUDGE: M. Douglas

Evidence and testimony were presented and, based upon the entire record; the following Findings of Fact, Conclusions of Law and Recommendation are made: FINDINGS OF FACT 1. Respondent is the holder of a Class KB-02 License issued by the Registrar of Contractors. 2. The Complainant is a general contractor which employed the Respondent as a drywall wall subcontractor. 3. As part of the Construction Agreement the Respondent was to have, and maintain an agreed upon amount of liability and workers compensation insurance. 4. There was no dispute that the Respondent did not have liability or workers compensation insurance when the construction project began. 5. The Complainant testified and asserted that it had repeatedly asked for proof of insurance and the Respondent had repeatedly agreed to provide proof of insurance. 6. The Respondent testified and asserted the Complainant was repeatedly informed that the Respondent was in the process of obtaining the requested liability and worker’s compensation insurance. 7. On or about May 8, 2006, the Complainant terminated the Respondent from the jobsite on the basis that the Respondent had not furnished the Complainant written proof that the Respondent had obtained workers compensation and liability insurance. 8. Credible testimony and evidence, presented at hearing, established the Complainant was providing workers compensation and liability coverage through its insurance carrier. 9. There was no credible evidence of what the Complainant’s additional costs, if any, were for the provision of workers compensation and liability insurance for subcontractor’s employees not otherwise covered by their employer. 10. The Respondent obtained the requested liability insurance on May 8, 2006, and the requested workers compensation insurance on May 18, 2006. 11. Credible testimony and evidence, presented at hearing, established the Respondent was willing to complete the construction project when the Complainant terminated the Construction Agreement and fired the Respondent. 12. There was no credible evidence that the Respondent abandoned the construction project. 13. The Complainant asserts the Respondent was overpaid for the work that the Respondent actually completed prior to its termination. 14. Credible testimony and evidence, presented at hearing, established the Respondent was paid in accordance with the terms and conditions of the parties’ written Construction Agreement. CONCLUSIONS OF LAW 1. The Complainant has the burden of demonstrating by a preponderance of the evidence that the Respondent violated the charged sections of the State’s Contracting Laws. See Culpepper v. State of Arizona, 187 Ariz. 431, 437-38, 930 P.2d 508 (Ariz. App. 1996). 2. 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). 3. The Complainant failed to sustain its burden of proof to establish that the Respondent violated the charged sections of the State’s Contracting Laws. 4. 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. 5. The credible evidence of record was inadequate to support any finding of a violation of A.R.S. § 32-1154A (1) (Abandonment), (7) (Wrongful Act), (11) (Failure to pay monies in excess of seven hundred and fifty dollars when due for materials or services) or (3) (Violation of any rule adopted by the Registrar).

RECOMMENDED ORDER In view of the foregoing, it is recommended this Citation, together with the Complaint upon which it is based be dismissed. In the event of certification of this Administrative Law Judge Decision by the Director of the Office of Administrative Hearings, the effective date of the Order will be 40 days from the date of the certification. Done this day, December 21, 2006.

______________________________________ M. Douglas 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 ___________________________ -----------------------

Office of Administrative Hearings 100 North Stone Avenue, Suite 704 Tucson, Arizona 85701 (520) 628-5488