ALJDEC decisions subject to certification as final

08F-1963-ROC · Registrar of Contractors · 2009-01-26

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: January 20, 2009 APPEARANCES: Complainant appeared through its vice-president and qualifying party, Patricia Dehart (“Patricia”) and Respondent appeared through its corporate treasurer, Chantel Griffin (“Chantel”). 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. At the outset of the scheduled hearing, it was determined that pursuant to an Order of the Registrar of Contractors, the Class A license of Superpipe, LLC (“Superpipe”), was no longer a named Respondent in the instant hearing. According to the Registrar’s Order of December 19, 2008, he had determined that Superpipe had failed to file a timely answer to the applicable Citation and Complaint. Thus, the Agency quashed the request for a hearing against Superpipe and indicated that a default Decision and Order was to be issued in case no. 08- 1963X. This action was to have no effect on the pending hearing involving Pinal Excavation, Inc.

2. Complainant claims that Respondent named herein is responsible for payment on street patching work that Complainant performed. The facts surrounding this claim are discussed in the findings below.

3. Patricia testified that Complainant was hired by Superpipe to perform the street patching work. There was a written contract for this work and it showed that the contract was with a company known as Superpipe, not Respondent named herein.

4. Complainant completed the work in question and has received no complaints regarding the work performed. Although the original contract price was for $13,787.50, pursuant to a verbal change order the work performed by Complainant the project came to a final price of $15,325.00.

5. Notwithstanding Complainant’s completion of all of the contracted work, it has not received any payment whatsoever.

6. When Patricia contacted the general contractor on the project, regarding the failure of Superpipe to pay for the work performed by Complainant, she was advised by said general contractor that he was not employing Superpipe on the project, but was instead using Respondent.

7. Chantel testified that Complainant’s contract was with Superpipe and not Respondent. Therefore, she believes the instant matter should be dismissed.

8. Superpipe and Respondent are separate legal entities and separate licensed contractors. The record presented herein supports a finding that the applicable contract was with Superpipe, not Respondent. The record presented herein was inadequate to support any determination for “piercing the corporate veil.” Thus, Complainant failed to sustain the requisite burden of proof necessary to show that Respondent has any obligation to pay for the work performed by Complainant on its contract with a different legal entity, Superpipe.

9. Nothing in this ruling should serve to prevent Complainant from pursuing its claim against Superpipe in Registrar of Contractors’ case no. 08-1963X.

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 the 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 (08-1963/08-1963X), 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, January 23, 2009.

______________________________________ Mark A. Silver Administrative Law Judge

Original transmitted by mail this ____ day of ____________, 2009, to:

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

By ___________________________

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