ALJDEC decisions subject to certification as final

2010A-27437795-ROC · Registrar of Contractors · 2010-08-18

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: August 17, 2010 at 1:00 p.m. APPEARANCES: The Complainant appeared through its authorized representative, John Zyadet. The Respondent appeared through its attorney, Mike Shern. 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 License No. A.247154-C issued by the Registrar of Contractors. 2. This is a commercial matter where the parties entered into a written agreement for the Complainant to provide labor, equipment and material for traffic control including all setups, teardowns, and maintenance for up to ninety (90) days for a construction project that the Respondent was performing for the City of Scottsdale. 3. Credible testimony and evidence established that the Respondent agreed to pay the Complainant one hundred and forty five dollars ($145.00) per day for the stated duration of the parties’ written agreement. 4. Credible testimony and evidence established that the completion of the construction project was delayed for an unknown period time due to problems beyond the control of either party. 5. Credible testimony and evidence established that no construction work was performed on many of the days involved in the delay. 6. The parties are in sharp dispute as to how many days the project was delayed and the amount of money that the Complainant was to receive for the additional days involved in the delay and the amount of services the Complainant actually provided for the additional days that were required to complete the construction project. 7. Credible testimony and evidence established that the Respondent paid the Complainant $2,500.00 at the onset of the construction project and gave the Complainant a check for an additional $13,972.42 on February 16, 2010. 8. There was no dispute that the Complainant did not attempt to deposit the check for $13,972.42 until August 9, 2010 on which date the check was returned for insufficient funds. 9. Credible testimony and evidence established that the Respondent had incorrectly assumed the February 26, 2010 check had been cashed and closed the account that the check had been drawn on and opened a new account with a different bank. 10. Credible testimony and evidence established that the Respondent promptly made good on the insufficient funds check and that the Complainant has now received a total of $16,472.42 ($2,500.00 plus $13,972.42) for its work on the construction project at issue. 11. The Complainant asserts that Respondent owes the Complainant an additional sum of $2,021.75 for finance charges, $250.00 for lien fees, $85.00 for court filing fees, $776.80 (40 hours at $19.42 per hour) in administrative fees and the sum of $3,577.25 that the Complainant alleges that the Respondent failed to pay for the additional days involved in completing the construction project. 12. The Respondent alleges that it has paid the Complainant in full for the construction project. 13. The credible evidence of record is insufficient and fails to support a finding that the parties entered into a new construction agreement, either written or oral, for the performance of construction work for the additional days necessitated to complete the construction project as a result of the unexpected delays. 14. The credible evidence of record is insufficient and fails to support a finding that the parties agreed to a change order or addendum to the parties’ original construction agreement. 15. The credible evidence of record is insufficient and fails to support a finding that the parties even discussed the amount of money that the Complainant should receive for the additional days involved in the delay of the construction project. 16. The credible evidence of record is insufficient and fails to support a finding as to the amount of money per day that the Complainant was to be paid for the additional days involved in completing the construction project. 17. The credible evidence of record is insufficient and fails to support a finding as to the amount per day the Complainant was to receive for those additional days on which no work was performed at the construction project. 18. The credible evidence of record is insufficient and fails to support a finding as to the exact number of days that were required to complete the construction project. 19. The credible evidence of record is insufficient and fails to support a finding as to the number of days that the Complainant actually furnished labor and materials for the additional days involved in completing the construction project. 20. The credible evidence of record is insufficient and fails to support a finding regarding what, if any, amount of money is due and owing to the Complainant from the Respondent in this matter. 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 to the Complainant and thus, has not sustained the burden of proving that Respondent has committed the violation charged herein.

RECOMMENDED ORDER

In view of the foregoing, it is recommended that this Citation, together with the Complaint upon which it is based, 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, August 18, 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