ALJDEC decisions subject to certification as final

08F-1873-ROC · Registrar of Contractors · 2008-12-10

STATE OF ARIZONA OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: December 8, 2008

APPEARANCES: Michael Blackstock, President and Qualifying Party, appeared on behalf of Complainant JMJ Construction; Respondent Zacher Construction did not appear.

ADMINISTRATIVE LAW JUDGE: Eric A. Bryant _____________________________________________________________________

Complainant JMJ Construction, Inc. brings this action to force Respondent Zacher Construction, Inc. to pay for subcontracted electrical work done by Complainant. Complainant appeared at the time and place for hearing. As noted above, no representative appeared at the hearing on behalf of Respondent. Because Respondent did not appear, Complainant’s evidence against Respondent is uncontested. Michael Blackstock testified on behalf of Complainant. In addition, Complainant presented evidence in the form of the complaint file received by this tribunal from the Registrar of Contractors. Having considered the evidence and testimony presented at the hearing and, based upon the entire record, the Administrative Law Judge makes the following Findings of Fact, Conclusions of Law, and Recommended Order finding no violation by Respondent. FINDINGS OF FACT 1. Respondent Zacher Construction, Inc. is the holder of a class B- general commercial contractor license (No. 211522) issued by the Registrar of Contractors. That license authorizes Respondent to perform general commercial construction of structures, except for certain specialty contracting such as electrical, plumbing, air conditioning systems, boilers, swimming pools, etc.[1] The Qualifying Party on the license is Richard Zacher. 2. Complainant is the holder of a class L-11 specialty commercial contracting license allowing Complainant to perform electrical work for commercial projects. In August 2007, Complainant entered into a subcontracting agreement with Respondent. Complainant performed the agreed- upon work and sent invoices to Respondent for payment. The last invoice, dated January 2008, shows a balance owed of about $95,000.00. 3. Complainant filed the complaint at issue in January 2008, claiming failure to pay what was owed on the contract. In March 2008, Complainant entered into a settlement agreement with Respondent. That agreement provided for payment to Complainant of $71,643.75 in return for a release of claims related to the project.[2] Complainant’s President and Qualifying Party Michael Blackstock signed an unconditional waiver and release that same day, stating that Complainant had been paid in full with the final payment of $71,643.75 for all work done on the project.[3] 4. At hearing, Mr. Blackstock testified and confirmed that Complainant had been paid the $71,643.75. He argued that the settlement and release only released the lien Complainant had on the project and that Complainant was still owed money on the project. 5. Complainant’s argument is not supported by the evidence. The settlement and release documents settle all claims relating to the project and show that Complainant accepted the final payment of $71,643.75 as payment in full for the work. Therefore, Respondent has paid Complainant all that Complainant is due. CONCLUSIONS OF LAW 1. The burden of proof at an administrative hearing is generally upon a complainant.[4] Further, the standard of proof at hearing is by preponderance of the evidence.[5] Therefore, Complainant bears the burden of showing, by a preponderance of the evidence, that Respondent has violated the statutes cited in the Citation and Complaint.[6] Complainant has not met that burden. 2. The evidence is not sufficient to show that Respondent has violated A.R.S. § 36-1154(A)(11), failure to pay an amount greater than $750.00 when due for services in connection with a licensee’s operation as a contractor. Under the terms of the settlement, no further payment is due. 3. The evidence is also not sufficient to show that Respondent has violated A.R.S. § 36-1154(A)(7), which prohibits committing a wrongful act that substantially harms another. 4. Complainant has failed to show a violation of statute by Respondent. 5. This matter should be dismissed.

. . .

RECOMMENDED ORDER Based on the foregoing, it is hereby recommended that the Citation and Complaint against Respondent Zacher Construction, Inc. in case 08-1873 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 will be 35 days from the date of that certification.

Done this 10th day of December 2008.

Office of Administrative Hearings

______________________________ Eric A. Bryant Administrative Law Judge

Original mailed this ___ day of December 2008, to:

Armando Contreras Registrar of Contractors 3838 N. Central Ave. Phoenix, AZ 85012

By ___________________________ ----------------------- [1] See, Arizona Revised Statutes (A.R.S.) § 32-1102 and Arizona Administrative Code (A.A.C.) R4-9-102 for a description of license classifications. [2] Confidential Settlement Agreement and Mutual Release, dated March 11, 2008, and filed with the ROC Legal Department on September 3, 2008. [3] Unconditional Waiver and Release upon Final Payment, signed on March 11, 2008, and filed with the ROC Legal Department on September 3, 2008. [4] Utah Construction Company v. Berg et al, 68 Ariz. 285, 205 P.2d 367 (1949). [5] Smith v. Arizona Dept. of Transportation, 146 Ariz. 430, 706 P.2d 756 (App. 1985). [6] See Culpepper v. State, 187 Ariz. 431, 437, 930 P.2d 508, 514 (Ct. App. 1996) (moving party bears burden of proof by preponderance of evidence in an administrative hearing).

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