ALJDEC decisions subject to certification as final

08F-A0423-ROC · Registrar of Contractors · 2009-03-02

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: February 26, 2009

APPEARANCES: Complainant appeared through its president and qualifying party, Bruce Kasemeier (“Bruce”) and Respondent appeared through its president and qualifying party, Jason Temple (“Jason”). 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 contends that Respondent failed to pay the final billing for materials, which Complainant submitted at the end of the plumbing project on Respondent’s new home construction project. Respondent contends that all monies on the job were paid. The facts 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. Bruce testified that he was retained by Respondent to perform all of the plumbing related work on a new home construction project which was going to be the personal home of Jason. b. There was no written contract between the parties and since Bruce had hopes of obtaining other work from Respondent, he agreed to do the plumbing work at his basic cost. c. Evidence of record showed that all payments for the project were made in cash. Bruce testified that he has been paid for his labor on the project and the remaining billing is only for material costs. He asserts that Respondent owes him the sum of $18,441.75 for these material costs. d. It was undisputed that the plumbing work was completed on the project and there is no outstanding punch list work. e. Jason testified that Complainant completed work on the project on or about September 2006. When Complainant completed the work, he asked if he would wait one month for final payment, so that he could obtain the money from his new mortgage. f. According to Jason, he obtained his new mortgage on October 3, 2006 and on October 5, 2006 he gave Bruce $26,000.00, in cash, to pay the balance due on his personal new home project, along with another home that he was building for others. Although he paid in cash, he admits he did not receive any receipt for the money. g. Jason indicated that he never heard anything from Complainant about the balance due on this project until he received the filed Complaint and this was almost one (1) year after the project was completed.

3. Based on the foregoing, it is determined and held that the sharply conflicting testimony from both parties did not provide sufficient grounds for the disbelief of either side’s assertions regarding whether or not Complainant was paid in full for the plumbing work. Therefore, Complainant did not sustain the requisite burden of proof necessary to establish that Respondent had violated any of the applicable charged workmanship related sections of the State’s Contracting laws.

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 (A08-0423), 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, March 2, 2009.

______________________________________ Mark A. Silver Administrative Law Judge

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

Registrar of Contractors William A. Mundell Legal Department 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