ALJDEC decisions subject to certification as final

2010A-308473418-ROC · Registrar of Contractors · 2011-01-28

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: December 16, 2010

APPEARANCES: Complainant was represented by corporate President Alex Kolath; Respondent was represented by Member and Qualifying Party John Oddonetto.

WITNESSES: Alex Kolath John Oddonetto

ADMINISTRATIVE LAW JUDGE: Eric A. Bryant _____________________________________________________________________

Complainant brings this action claiming that it is owed $1,000.00 from Respondent for materials Complainant supplied to Respondent in connection with Respondent’s work as a contractor. Respondent agrees that it owes Complainant $171.25, but denies owing anything further. This leaves a disputed amount of $828.75. This tribunal entered the complaint file received from the Registrar of Contractors into the record, with the addition of Complainant’s Exhibit A, submitted at the hearing. The parties presented evidence and testimony at the hearing. Both parties also submitted post-hearing information through January 14, 2011. All of the post-hearing information was accepted into the record by Orders issued on January 5 and 19, 2011. Based upon the entire record, the Administrative Law Judge makes the following Findings of Fact, Conclusions of Law, and Decision finding for Complainant.

FINDINGS OF FACT 1. Respondent is the holder of license K-5.248587-D issued by the Registrar of Contractors (“ROC”). That license authorizes Respondent to install granite countertops for both commercial and residential projects. Respondent’s Managing Member and Qualifying Party is John Oddonetto.[1] 2. Complainant is a material supplier of various stone materials used in construction. The evidence shows that Respondent’s clients (“homeowners”) went to Complainant’s business in November 2008 and chose material for granite countertops. The material consisted of four slabs of granite, identified by bundle and slab numbers. As of November 18, 2008, one of the slabs (slab “#4”) was designated as a “hold” item.[2] This means the material is held at the supplier in case more material is needed at the jobsite after the work starts. Respondent testified at hearing that the job he was doing for homeowners was “a three slab job.” 3. On November 19, 2008, Respondent picked up the material at Complainant’s lot. The parties dispute how many slabs Respondent took that day. Respondent testified that he took only three slabs with him that day and left the fourth slab on hold at Complainant’s facility. His testimony is supported by the documentation created before November 19, 2008, that shows that one of the four slabs was to be held. It is also bolstered by the invoice for the slabs: Invoice 10283. Invoice 10283 lists four slabs and their cost, but is amended with a handwritten note stating “3 slabs ( $2486.25,” which is the cost of three slabs. Invoice 10283 is signed by John Oddonetto just under the handwritten note. Respondent also paid Complainant $2486.25 on November 19, 2008. Thus, there is circumstantial evidence in support of Respondent’s testimony that he took only three slabs that day. 4. Complainant’s corporate President Alex Kolath,[3] on the other hand, testified that Respondent paid for three slabs, but took four with him. Complainant’s testimony is based on Complainant’s knowledge of the process for selling slabs. Complainant testified that only slabs that are loaded onto customer’s vehicles are printed in an invoice. Therefore, he concludes that four slabs were given to Respondent on November 19, 2008 because four slabs are printed on Invoice 10283. However, he acknowledges that Respondent paid for only three slabs that day. He admits that normally customers are required to pay for what they take, but that sometimes customers are given “credit” and allowed to pay later. There is evidence in the record showing that Respondent was given “credit” for materials used on another job on November 19, 2008, by being allowed to take materials and pay later. 5. Invoice 10283 does not designate “slab #4” to be a slab for hold. The hold language that had been attached to that slab on earlier documentation is missing on Invoice 10283. This could indicate that the slab was taken by Respondent. On the other hand, Complainant admits that there is a typographical error on Invoice 10283 that lists “slab 9” twice, one of which should have been slab 8. This somewhat diminishes the reliability of the information on Invoice 10283. 6. Complainant testified at hearing that there was never “an extra slab” found in the inventory for that granite bundle, which would have been the case had Respondent taken only three slabs that day. However, he provided no supporting and corroborating evidence for that statement, so it cannot be given full weight. 7. The price per slab was $828.75, the same as the amount in dispute. Thus, the critical question in this case is whether Respondent took the fourth slab on November 19, 2008. CONCLUSIONS OF LAW 1. The burden of proof at an administrative hearing is generally upon a complainant.[4] Further, the standard of proof at hearing is by preponderance of the evidence.[5] Therefore, Complainant bears the burden of showing, by a preponderance of the evidence, that Respondent has violated the statutes cited in the Citation and Complaint.[6] Complainant has met that burden. 2. The Citation and Complaint in this case cites only the “no pay’ provision found in Arizona Revised Statutes (A.R.S.) § 32-1154(A)(11) that prohibits the failure of a licensee to pay monies in excess of $750 “when due for materials or services” when the licensee has the capacity to pay or when the licensee has been paid for the project. 3. Taking all the evidence into consideration, the evidence is sufficient to show that Respondent has violated the no-pay provision. Complainant’s case is based on circumstantial evidence, but the evidence as a whole constitutes a preponderance in support of the conclusion that Respondent, more probably than not, took four slabs with him.[7] This conclusion is based on the evidence when viewed as a whole, with the most notable point being that “slab 4” remained on the invoice and had the hold language removed. Even though it is not a certainty, it is more likely than not that Respondent took the fourth slab on November 19, 2008. 4. The conclusion that a preponderance of evidence shows that Respondent took the fourth slab does not mean that this tribunal finds that Respondent was not being truthful at hearing. The events in question occurred more than two years ago and neither Respondent nor Complainant had specific recollection of them. Both parties were arguing based on circumstantial evidence, not direct knowledge. 5. The evidence shows that Respondent owes Complainant $1,000.00. 6. A review of Respondent’s license history shows that the license is current and in good standing. Therefore, Respondent should be given an opportunity to pay Complainant the money owed. RECOMMENDED ORDER IT IS RECOMMENDED that license K-5.248587-D, held by Respondent Oddonetto Granite and Marble, LLC, be suspended on the effective date of the Registrar’s Order unless the Registrar of Contractors receives written proof of payment to Complainant of the sum of $1,000.00, and the Registrar accepts such written proof. IT IS FURTHER RECOMMENDED that if Respondent provides such written proof, on or before the effective date of the Registrar’s Order, the license suspension shall not take place and case 2010-[number redacted] shall be closed.

In the event of certification of the 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 that certification.

Done this day, January 28, 2011.

/s/ Eric A. Bryant Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors ----------------------- [1] Hereinafter, both the company and Oddonetto will be referred to as “Respondent.” [2] This designation appears in two documents in the record: an untitled document showing homeowners’ choice of product dated 11/15/2008 and an Order Acknowledgement dated 11/18/2008. [3] Hereinafter, both the company and Kolath will be referred to as “Complainant.” [4] Utah Construction Company v. Berg et al, 68 Ariz. 285, 205 P.2d 367 (1949). [5] Smith v. Arizona Dept. of Transportation, 146 Ariz. 430, 706 P.2d 756 (App. 1985). [6] See Culpepper v. State, 187 Ariz. 431, 437, 930 P.2d 508, 514 (Ct. App. 1996) (moving party bears burden of proof by preponderance of evidence in an administrative hearing). [7][8] See State v. Harvill, 106 Ariz. 386, 476 P.2d 841 (1970) (probative value of circumstantial evidence is intrinsically similar to that of direct evidence; each type of evidence is to be weighed in a similar manner).

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