ALJDEC decisions subject to certification as final

08F-2513-ROC · Registrar of Contractors · 2008-12-24

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: December 18 2008

APPEARANCES: Complainant appeared through its president, Hector Fernandez (“Hector”) and Respondent appeared through its owner and qualifying party, Marco Antonio Chavira (“Marco”). 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, asserting that it had paid Respondent a specified down-payment for electrical work and since no work was performed on the project, Respondent should return the down- payment money received. The facts surrounding this claim are discussed in the findings below.

2. The salient portions of Hector’s testimony included the following:

a. Complainant was retained by the owner of the project in question to convert an existing home into a restaurant. Complainant was to be the general contractor for the project. b. Complainant contracted with Respondent to have the electrical work performed for the project. In this regard, the parties named herein entered into a contract for $4,500.00 and Complainant gave Respondent a down-payment in the amount of $3,000.00. c. Complainant performed demolition on the project and then Hector claims that the owner of the project elected to cancel the project. At that point he requested that Respondent return the down-payment, which Respondent refused to do. d. Hector admits that Marco reviewed proposed electrical plans and placed his stamp on them. However, he testified that the local building authority required that the plans be stamped as approved by a licensed engineer. He also contends that the engineer had to make some changes to the plans from Respondent. e. He claims that the contract in question herein does not include Respondent preparing the electrical plans for the project.

3. Marco testified at the hearing and the salient portions of his testimony included the following:

a. The contract was to upgrade the existing electrical, in order to serve the needs of the new restaurant. b. He contends that from the moment the parties executed the contract he proceeded to work on the project immediately. He examined the existing plans for the electrical and determined that they were incomplete and did not meet the requirements of the National Electrical Code. Therefore, he agreed to modify the plans and advised Hector that he was going to perform this work. c. He reworked the plans and submitted same to the local building authority, who requested more details on the plans. The request for additional details required further work on the plans and he had to redo each and every circuit. When the reworking of the plans was completed, he signed the plans and put his seal on them. d. He admits that the local building authority did require an engineer to stamp the reworked plans but he claims no changes were made by the engineer. e. He also asserts that he expended time on the project by inspecting same and meeting with SRP on the project to discuss the electrical modifications. He also removed some wires that were exposed during the demolition because they were creating a safety hazard. f. According to Marco he was involved with this project for anywhere from four (4) to five (5) months before Hector advised that the project was cancelled. g. He claims that his time and efforts on the project equal a payment of $3,000.00.

4. The facts presented herein fail to show any abandonment of the project by Respondent. In fact, it was Complainant that terminated Respondent from the project, due to Hector’s claim that the owner of the project had terminated the conversion of the property from a residence to a restaurant.

5. Regarding the issue of the return of the $3,000.00 down-payment for the electrical work, it is clear that Respondent spent time and effort on the project, getting ready to perform the actual in the field electrical upgrades. Marco claims his efforts on the project are worth $3,000.00 and Hector claims that Respondent did not earn any money and the full $3,000.00 should be returned to Complainant. The value of the services rendered by Respondent is the subject of a good faith money dispute and, as such prevents the finding of any “wrongful act” by Respondent. In addition, the Registrar of Contractors, acting through an administrative license disciplinary hearing is the inappropriate forum to adjudicate and liquidate such a good faith money dispute. Complainant has failed to sustain the requisite burden of proof necessary to show any Contracting law wrongdoing by Respondent.

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 (08-2513), 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, December 24, 2008.

______________________________________ Mark A. Silver Administrative Law Judge

Original transmitted by mail this ____ day of ____________, 2008, 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