ALJDEC decisions subject to certification as final

10F-1230-ROC · Registrar of Contractors · 2010-04-27

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: April 26, 2010 at 1:00 p.m. APPEARANCES: The Complainant appeared through its authorized representative, Edward Roberts. The Respondent appeared through its attorney, Edmund Richardson. 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 wherein the Complainant performed roofing work on a commercial construction project for a subcontractor of the Respondent. 3. The Complainant asserts that the Respondent failed to pay it for its completed roofing work on a commercial construction project wherein the Respondent was functioning as a general contractor. 4. Credible testimony and evidence established that there was no contractual relationship between the Respondent and the Complainant. 5. Credible testimony and evidence established that much of the roofing work that was completed by the Complainant failed to comply with applicable workmanship and industry standards and that the Respondent has been required to cause an alternative contractor to perform substantial corrective work on the Complainant’s roof work on the commercial construction project. 6. The credible evidence of record adequately demonstrated a dispute between the parties regarding what, if any, amount of money is due and owing to the Complainant from the Respondent. 7. The Respondent’s position in this monetary 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.

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. Proof by preponderance of the evidence “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 the requisite burden of proving the existence of a valid liquidated debt properly due and owing by the Respondent and thus, has not sustained the burden of proving that the Respondent has committed the violations charged herein. 5. 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. Until and unless any claimed obligation is reduced to judgment by a civil court of competent jurisdiction, no violation by the Respondent of the charged provisions of A.R.S. § 32-1154A (11) can be supported.

RECOMMENDED ORDER

In view of the foregoing, it is recommended that this Citation, together with the Complaint upon which it is based, shall 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, April 27, 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