ALJDEC decisions subject to certification as final

09F-1236-ROC · Registrar of Contractors · 2009-07-31

STATE OF ARIZONA OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: July 14, 2009

APPEARANCES: Complainant Marco Chavira appeared on his own behalf; Respondent Andean Construction was represented by its President and Qualifying Party Hector A. Fernandez.

ADMINISTRATIVE LAW JUDGE: Eric A. Bryant _____________________________________________________________________

Complainant Marco Chavira brings this action to force Respondent Andean Construction Corporation to pay a remaining balance on a contract between the parties. Respondent denies that any further payment is owed. This tribunal entered the complaint file received from the Registrar of Contractors into the record, with the addition of Exhibit 1 added at the hearing. The parties presented evidence and testimony. Based upon the entire record, the Administrative Law Judge makes the following Findings of Fact, Conclusions of Law, and Decision finding no violation of law. FINDINGS OF FACT 1. Respondent Andean Construction Corporation is the holder of a class L-61 specialty commercial contracting license (No. 213986) issued by the Registrar of Contractors (“ROC”). That license authorizes Respondent to perform rough and finish general carpentry work, and general remodeling work not to exceed $50,000 for commercial projects and with the exception of the electrical, plumbing, and air conditioning portions of the projects.[1] The Qualifying Party on the license is Hector Fernandez. 2. Complainant is the holder of a class K-11 specialty dual (commercial and residential) contracting license allowing Complainant to perform electrical work. In October 2007, Complainant entered into a subcontracting agreement with Respondent for electrical work on a house being remodeled into a restaurant. The contract price was $4,500.00. 3. Complainant was paid an initial payment of $3,000.00 and performed some preliminary work under the contract. At some point during the beginning of the project, Respondent informed Complainant that the owner had cancelled the project and Respondent terminated the contract. 4. The parties have gone through the hearing process in a prior case dealing with this contract.[2] In that matter, Respondent filed a complaint against Complainant seeking the return of the $3,000.00 payment. The Registrar found no violation and Complainant was not ordered to return the $3,000.00. 5. Complainant filed the complaint at issue here in August 2008, claiming a violation for failure to pay the rest of what was owed on the contract. 6. At hearing, Complainant testified and argued that Respondent must pay the rest of the contract price, even though the contract was terminated. Respondent testified that he terminated the contract because the owner cancelled the project. CONCLUSIONS OF LAW 1. The burden of proof at an administrative hearing is generally upon a complainant.[3] Further, the standard of proof at hearing is by preponderance of the evidence.[4] 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.[5] Complainant has not met that burden. 2. The evidence is not sufficient to show that Respondent has violated those statutes cited in the Citation and Complaint. The contract between the parties does not provide specific terms for cancellation of the contract. It does not state under what circumstances the contract can or cannot be terminated. Furthermore, the reason given by Respondent for termination, cancellation of the project by the owner, is a reasonable basis for terminating the contract. Complainant has retained the $3,000.00 payment and has shown no harm from the cancellation. 3. Complainant has failed to show a violation of statute by Respondent. 4. This matter should be dismissed. RECOMMENDED ORDER Based on the foregoing, it is hereby recommended that the Citation and Complaint against Respondent Andean Construction Corporation in case 09- 1236 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 40 days from the date of that certification.

Done this 31st day of July 2009.

Office of Administrative Hearings

______________________________ Eric A. Bryant Administrative Law Judge

Copy mailed this ___ day of July 2009 to:

William A. Mundell, Director Registrar of Contractors c/o Legal Department 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] OAH Docket No. 08F-2513-ROC. [3] Utah Construction Company v. Berg et al, 68 Ariz. 285, 205 P.2d 367 (1949). [4] Smith v. Arizona Dept. of Transportation, 146 Ariz. 430, 706 P.2d 756 (App. 1985). [5] 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