ALJDEC decisions subject to certification as final

09F-6318-ROC · Registrar of Contractors · 2010-01-07

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: January 6, 2010 at 1:00 p.m. APPEARANCES: The Complainant appeared on his own behalf. The Respondent appeared through its authorized representative, Joe Jaime. ADMINISTRATIVE LAW JUDGE: M. Douglas

Evidence and testimony were presented and the following Findings of Fact, Conclusions of Law and Recommended Order are made:

FINDINGS OF FACT 1. The Respondent is the holder of a Class B-01 License issued by the Registrar of Contractors. 2. This is a commercial matter where the parties entered into a construction agreement for the Respondent to construct a fire water line for the Complainant’s commercial property.

3. The parties’ written construction agreement provides as follows: All work to industry and building standards for fire water lines, guaranteed for one year from completion, all work per plans by Sergio Gonzales. Price does not include permit fees, special inspections, work above and beyond standard scope of work, additions required by city above scope of work. TERMS: 50% START UP DOWWN PAYMENT. Final payment within two weeks of job completion. 4. Credible testimony and evidence established that the local building authority required additional construction work above the scope of work set forth in the parties’ written agreement and that the cost of the construction project escalated. 5. Credible testimony and evidence established that as the cost of the construction project escalated and the amount time required to comply with the requirements of the local building authority increased the parties’ personal relationship deteriorated rapidly. 6. Credible testimony and evidence established that the Respondent completed the construction project in a workmanlike manner. There was no credible evidence of any workmanship by the Respondent that failed to comply with applicable industry and workmanship standards. 7. When the Complainant declined to pay the Respondent the remaining sums due under the parties’ written agreement the parties became embroiled in a contractual dispute regarding the amount of money, if any, that should be paid to the Respondent and the Complainant’s alleged damages. 8. When the parties were unable to resolve their contractual dispute the Complainant filed a formal complaint against the Respondent with the Registrar of Contractors alleging that the Respondent had improperly departed from or disregarded plans and specifications and or building codes and that the Respondent had committed a wrongful or fraudulent act. 9. At the hearing the Complainant asserted that he should be entitled to receive money damages from the Respondent. 10. The credible evidence of record is insufficient and fails to support a finding that the Respondent departed form or disregarded plans and specifications or failed to comply with or disregarding applicable building codes. 11. There was no credible evidence of a wrongful or fraudulent act by the Respondent. 12. The contractual dispute between the Complainant and the Respondent is found to be a good faith money dispute which will necessarily involve a monetary adjudication for damages which should be resolved, if at all, in a civil court of competent jurisdiction...

CONCLUSIONS OF LAW 1. 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). 2. 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). 3. 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 the Respondent of the provisions of A.R.S. §32-1154 (A), 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, January 7, 2010.

/s/ M. Douglas Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors -----------------------

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