ALJDEC decisions subject to certification as final

08F-S0122-ROC · Registrar of Contractors · 2009-03-27

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: March 25, 2009, at 9:00 a.m. APPEARANCES: The Complainant appeared on his own behalf. The Respondent appeared on his own behalf. A Spanish/English speaking interpreter was present for the hearing. 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 Recommended Order are made:

FINDINGS OF FACT 1. Respondent is the holder of a Class K-42 License issued by the Registrar of Contractors. 2. This is a residential matter where the Respondent entered into a construction Contract with Veronica Moreno to install a hot roofing system on a residence located at 993 Calle Coyote, Rio Rico, Arizona for the sum of $5,950.00. 3. Credible testimony and evidence established that Veronica Moreno paid the Respondent a down payment of $3,000.00 and the Respondent began work on the construction project. 4. Credible testimony established that Veronica Moreno was unable to complete the construction work on the residence and deeded the property over to the Complainant. 5. The Complainant then contacted the Respondent and demanded that a portion of the down payment be returned to the Complainant or the escrow company so the Complainant could apply the money to his costs of completing the construction of the residence utilizing an alternative roofing contractor. 6. Credible testimony and evidence established that the Respondent was unable to contact Veronica Moreno to arrange to finish the roof and that the Respondent was unaware of the Complainant’s involvement with the residence until the Complainant asked for the return of a portion of the down payment paid by Veronica Moreno. 7. When the Respondent refused to return any money to the Complainant, the Complainant filed a formal Complaint against the Respondent with the Registrar of Contractors. 8. There was no jobsite inspection and no Corrective Work Order because the roofing work on the residence at issue had already been completed by an alternative contractor. 9. Credible testimony established that the Respondent was willing and able to complete the construction project had the Respondent been given an opportunity to do so. 10. The parties were in sharp dispute regarding the value of the work actually completed by the Respondent. 11. Credible testimony and evidence presented at hearing adequately demonstrated that a dispute between the parties regarding what, if any, amount of money is due and owing to the Complainant from the Respondent.

12. The Respondent’s position in this dispute is found under all of the circumstances to have been asserted in good faith, and therefore, precludes a finding that a liquidated sum is owed to the Complainant. 13. The credible evidence or record is insufficient and fails to support a finding of abandonment or refusal to perform. 14. The credible evidence or record is insufficient and fails to support a finding of a wrongful or fraudulent act.

CONCLUSIONS OF LAW 1. The Registrar of Contractors, acting through an administrative disciplinary hearing, is not empowered by law to adjudicate amounts alleged to be due and owing in the face of a good faith dispute on such amounts. 2. 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). 3. 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). 4. The Complainant failed to sustain his burden of proof to establish that the Respondent violated the applicable charged sections of the State’s Contracting laws. Therefore, the credible 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 In view of the foregoing, it is recommended that this matter 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, March 25, 2009.

______________________________________ M. Douglas Administrative Law Judge

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

Registrar of Contractors William A. Mundell c/o Legal Department 3838 N. Central Ave. Phoenix, AZ 85012, Director

By ___________________________

-----------------------

Office of Administrative Hearings 100 N. Stone Avenue, Suite 704 Tucson, AZ 85701 (520) 628-5488 Fax: (520) 628-5575 www.azoah.com