ALJDEC decisions subject to certification as final

2010A-308473367-ROC · Registrar of Contractors · 2010-12-29

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: December 21, 2010 at 8:00 a.m. APPEARANCES: The Complainant appeared through its attorney, Tom Moring. The Respondent appeared through its attorney, Angela K. DeMars. 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-1 (No.181955) License issued by the Registrar of Contractors. 2. This is a commercial matter where the Complainant performed construction work as a painting subcontractor on a commercial construction project where the Respondent was operating in the capacity of a general contractor. 3. Credible testimony and evidence established that on May 10, 2010, the Complainant submitted a written proposal to the Respondent wherein the Complainant offered to apply specified epoxy floor paint to approximately 18,000 square feet of concrete flooring in a large building identified as National Guard Armory AAST #1 Hanger for the total sum of $43,800.00 for labor and materials. 4. There was no credible evidence of any signed written contract between the parties for the construction project. However, there was no dispute that the Respondent arranged for the Complainant to gain access to the National Guard Armory and that the Complainant began painting work on the construction project. 5. Credible testimony and evidence established that the Complainant had not worked on such a large construction project before and experienced problems with applying the specified epoxy floor paint on the approximately 18,000 square foot concrete floor. 6. On May 13, 2010, the Complainant issued an email to the Respondent (Exhibit No. R -1) which provides, in pertinent part, as follows: Harrison, Danny White Painting….he knows about the floor, he has like the fourth biggest painting company in the state. He can finish the floor by spaying [sic] it for you, he has done many like that. I have 3 cents in my business account and I don’t like the way the floor is Turing [sic] out, I cant [sic] get it too [sic] look right. I don’t have anything left in me. 7. On May 19, 2010, the Complainant issued three emails to the Respondent (Exhibit No. R -2) which provide, in pertinent part, as follows: Harrison I’m done u can get somonr [sic] to due [sic] this. I’m broke and the floor looks f... and I’m done working 7 days a week. When u get me a check so I can hire some people I’ll be back. I asked u last Friday I told u it was critical and noone listen [sic] to me….. I told my sales rep to go f... himself because the floor looks like garbage. 8. Credible testimony and evidence established that the Respondent then retained an alternative licensed contractor to properly complete the construction project at a cost of $27,200.00. 9. Credible testimony and evidence established that the Complainant then submitted an invoice (Exhibit C-2) to the Respondent for sum of $9,626.00 as the total due for labor and materials. 10. Credible testimony and evidence established that the Respondent paid the Complainant the requested sum of $9,626.00 and that the Complainant then signed a conditional waiver and release upon final payment (Exhibit No. R -3). 11. The Complainant then filed a formal complaint against the Respondent with the Registrar of Contractors alleging that the Respondent owes the Complainant the sum of $43,800.00 for the Complainant’s labor and materials on the construction project. 12. The Respondent denies that it owes any money to the Complainant and asserts that the painting work that was completed by the Respondent failed to comply with applicable workmanship and industry standards. 13. Both parties submitted testimony and evidence in support of their positions in this matter. 14. 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. 15. 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 of money is owed to the Complainant. CONCLUSIONS OF LAW 1. The Complainant has the burden of demonstrating by a preponderance of the evidence that 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 violation charged herein. 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. § 32-1154 (A) (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, 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, December 29, 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