ALJDEC decisions subject to certification as final

2010A-28121070-ROC · Registrar of Contractors · 2011-07-18

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: July 8, 2011, at 8:00 a.m. APPEARANCES: The Complainant appeared through its authorized representative, Carl Schemel. The Respondent appeared through its authorized representative, Shannon Niemann. ADMINISTRATIVE LAW JUDGE: M. Douglas

Evidence and testimony were presented and the following Findings of Fact, Conclusions of Law and Recommended Order on Rehearing are made: FINDINGS OF FACT 1. The Respondent is the holder of a Class B-1 (No. 133690) License issued by the Registrar of Contractors. 2. There was no dispute that the Complainant performed mill work as a subcontractor for the Respondent on a commercial construction project at 21390 83rd Street, Scottsdale Arizona. 3. There was no dispute that the Respondent sent the Complainant a written subcontractor’s work agreement along with a check at the onset of the construction project. 4. Credible testimony and evidence established that the Complainant cashed the check and began work on the commercial construction project at issue. 5. Credible testimony and evidence established that the written subcontractor’s work agreement provided that all payments to the Complainant were to be paid out of funds actually received by the Respondent from the owner of the construction project for the Complainant’s construction work and that the Complainant assumed the risk of the owner not paying the Respondent for the Complainant’s construction work. 6. Credible testimony and evidence established that the owner of the construction project at issue was extremely dissatisfied with the Complainant’s workmanship and with the length of time it took the Complainant to complete its mill work and that the owner of the construction project specifically refused to pay the Respondent the remaining sum of money that would have been due for the Complainant’s properly completed mill work. 7. The Complainant asserts that it did not sign the written subcontractor’s work agreement and is not bound by the terms of the written agreement but that the Respondent should pay the Complainant the remaining sum of $9,306.00 that is due to the Complainant under the terms of the parties’ written agreement. 8. The Respondent asserts that all work performed by the Complainant was in accordance with the terms of the written agreement provided by the Respondent and that the Complainant failed to notify the Respondent of any dissatisfaction with the terms of the written construction agreement or of any unwillingness to sign the construction agreement. 9. There was no dispute that the Complainant did cash the Respondent’s check that accompanied the written contract that the Respondent delivered to the Complainant. 10. Credible testimony and evidence established that the Complainant did not notify the Respondent that it was dissatisfied with the terms of the written construction agreement and that the Complainant was unwilling to sign the written construction agreement. 11. 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 in this matter. 12. 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 by the Respondent. 13. Credible testimony and evidence established that any resolution of the parties’ good faith money dispute would necessarily involve a monetary adjudication in civil court of competent jurisdiction. 14. Credible testimony and evidence of record established that the Respondent has failed to fully comply with the applicable provisions of A.R.S. § 32-1124 (B) (Display of license). 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 its burden of proof to establish that the Respondent violated the applicable charged provisions of A.R.S. §32- 1154 (A) (11) (Failure to pay monies in excess of seven hundred fifty dollars) as charged in the Citation and Complaint at issue. 5. A.R.S. § 32-1124 (B) provides as follows: Licenses issued under this chapter and any renewals shall be signed by the registrar or the registrar's designated representative and by the licensee. The license shall be nontransferable, and satisfactory evidence of possession shall be exhibited by the licensee upon demand. The license number appearing on any licenses held by the licensee shall be preceded by the acronym "ROC" and shall be posted in a conspicuous place on premises where any work is being performed, shall be placed on all written bids submitted by the licensee and shall be placed on all broadcast, published, internet or billboard advertising, letterheads and other documents used by the licensee to correspond with the licensee's customers or potential customers in the conduct of business regulated by this chapter. A violation of this subsection relating to posting and placement of license numbers shall be, at the discretion of the registrar, grounds for disciplinary action pursuant to section 32-1154, subsection A, paragraph 13, but not grounds for preventing the award of a contract, voiding an awarded contract, or any other claim or defense against the licensee. For the purposes of this subsection, advertising does not include a trade association directory listing that is distributed solely to the members of the association and not to the general public. 6. Credible evidence supported findings which establish that the Respondent violated the charged provisions of 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 commencing on the effective date of the Registrar’s Order that the Respondent’s License be suspended until the Respondent submits documentation with the Registrar that the Respondent is in full compliance with the applicable provisions of A.R.S. § 32-1124 (B) and the Registrar accepts such written proof of compliance. It is further recommended that if the Respondent submits written proof of full compliance with the provisions of A.R.S. § 32-1124 (B) that is acceptable to the Registrar, on or before the effective date of this Order, then the above provided License suspension shall not take place and that this matter be closed. 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, July 18, 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