ALJDEC decisions subject to certification as final

2009A-2918732-ROC · Registrar of Contractors · 2011-08-15

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: July 26, 2011, at 8:00 a.m. This matter was held open until August 1, 2011, to allow the parties sufficient time to file memoranda. APPEARANCES: The Complainant appeared through his attorney, Kevin E. Miniat. The Respondent appeared through his attorney, Dan W. Montgomery. 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’s Class B (No. 207129) License was administratively suspended for non-renewal on November 1, 2009, and expired on November 1, 2010. 2. Credible testimony and evidence established that the Complainant performed drywall and painting work as a subcontractor for the Respondent on a residence located at 13559 N. Chavez Ridge Place, Marana, Arizona. 3. Credible testimony and evidence established that the Respondent was operating as a licensed general contractor for the construction project at issue. 4. Credible testimony and evidence established that the Complainant is not a licensed contractor in the State of Arizona. 5. Credible testimony and evidence established that the Complainant has never been a licensed contractor in the State of Arizona. 6. Credible testimony and evidence established that the Respondent was aware of the fact that the Complainant was not a licensed contractor when the Respondent entered into two separate construction agreements with the Complainant for the performance of drywall and painting work on the residence at issue. 7. Credible testimony and evidence established that the monetary value of the drywall and painting contracts for the Complainant’s drywall and painting work on the residence at issue was over seven hundred and fifty ($750.00) dollars. 8. Credible testimony established that the Respondent was extremely dissatisfied with the Complainant’s painting and drywall work and terminated the Complainant from the construction project. 9. Credible testimony and evidence established that the Respondent then caused the Complainant’s drywall and painting work to be corrected and completed by other unlicensed persons who allegedly were working as employees of the Respondent. 10. Credible testimony and evidence established that the Respondent then refused to pay the Complainant the final $7,000.00 allegedly due to the Complainant for his painting and drywall work on the residential construction project. 11. When the Respondent failed to pay the final amount allegedly due under the parties’ construction agreements, the Complainant filed a formal Complaint against the Respondent with the Registrar of Contractors. 12. There was no onsite inspection because the Complainant’s construction work had already been modified. 13. Pursuant to the Complainant’s written request, a formal Citation and Complaint was then issued by the Registrar of Contractors charging the Respondent with possible violations of A.R.S. § 32-1154 (A) (7) (the doing of a wrongful or fraudulent act), A.R.S. § 32-1154 (A) (10) (aiding or abetting an unlicensed person to evade the provisions of this chapter), A.R.S. § 32-1154 (A) (11) (failure by a licensee to pay monies in excess of seven hundred fifty dollars when due for materials or services), and A.R.S. § 32-1154 (A) (13), namely, A.R.S. § 32-1124 (B) (display of license). 14. Credible testimony and evidence, presented at hearing, established that the Complainant’s painting on the residence located at 13559 North Chavez Ridge Place, Marana, Arizona, failed to comply with applicable workmanship and industry standards. 15. Credible testimony and evidence established that there is a money dispute between the parties regarding what, if any, amount of money is due and owing to the Complainant from the Respondent for the Complainant’s painting and drywall work on the residence at issue. 16. The Respondent’s position in the parties’ money 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 for his painting and drywall work on the residence at issue. 17. Credible testimony and evidence established that the Respondent knowingly aided and abetted an unlicensed person, the Complainant, to evade the licensing laws of the State of Arizona. 18. Credible testimony and evidence established that the Respondent failed to properly display its license number preceded by the acronym “ROC” on all documents used by the Respondent in this matter. 19. The Respondent’s actions, in entering into successive construction agreements with an unlicensed person for the performance of drywall and painting work on a residence for monetary amounts in excess seven hundred and fifty dollars, are found to constitute a wrongful act. 20. Notice is taken of the Respondent’s prior license record with the Registrar of Contractors. 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 his burden of proof to establish that Respondent violated the charged provisions of A.R.S. § 32-1154 (A) (11) (failure to pay monies in excess of seven hundred and fifty dollars when due for material or services). 5. Credible testimony and evidence supported findings which establish violations by the Respondent of the charged provisions of A.R.S. § 32- 1154 (A) (7) (wrongful act), A.R.S. § 32-1154 (A) (10) (aiding or abetting an unlicensed person to evade the provisions of this chapter), and A.R.S. § 32-1154 (A) (13), namely, A.R.S. § 32-1124 (B) (display of license). RECOMMENDed order In view of the foregoing, it is recommended that the Respondent’s License be revoked on the effective date of this Order of Revocation. 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, August 15, 2011.

/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