ALJDEC decisions subject to certification as final

10F-2135-ROC · Registrar of Contractors · 2010-04-30

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: April 30, 2010 at 1:00 p.m. APPEARANCES: The Complainant appeared on his own behalf. The Respondent appeared through its authorized representative, Ron Sargent. 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 K-42 License issued by the Registrar of Contractors. 2. Credible testimony and evidence established that the Complainant accepted and signed the Respondent’s written proposal wherein the Respondent agreed to perform roofing work on a residence for the Complainant who was functioning as a type of management entity. 3. There was no dispute that the Complainant paid the Respondent $2,500.00 as a down payment pursuant to the terms of the written proposal. 4. Credible testimony and evidence established that when the Respondent informed the Complainant that the Respondent would not be able to start and complete the construction project right away the Complainant retained another licensed contractor to perform the roofing work and requested that the Respondent return his $2,500.00 to him. 5. There was no dispute that the Respondent initially agreed to return the money to the Complainant. 6. There was no dispute that the Respondent then refused to return the $2,500.00 to the Complainant on the basis that the Complainant had allegedly breached the terms of the parties’ construction agreement and that consequently, no money was due to the Complainant. 7. The Complainant asserted that the parties had discussed the applicable time limitations for the performance of the agreed upon roofing work prior to the preparation of the written proposal. 8. The Respondent’s written proposal which was accepted and signed by the Complainant is found to be binding on both parties. The written agreement does not contain any apparent time limit nor does it specify what would happen to the down payment if the contract is canceled by the Complainant. 9. Credible testimony and evidence adequately demonstrated a dispute between the parties regarding what, if any, amount of money is due and owing to the Complainant from the Respondent. 10. 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. 11. The credible evidence of record is insufficient and fails to support a finding that the Respondent abandoned the construction project at issue.

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 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 his burden of proof to establish that the Respondent violated the applicable charged sections of the state’s contracting laws. 5. 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 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 30, 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