ALJDEC decisions subject to certification as final

2010A-308473799-ROC · Registrar of Contractors · 2011-01-25

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: January 6, 2011

APPEARANCES: Complainant was represented by its Managing Member Alan Fernandez; Respondent was represented by Managing Member Chris Grad.

WITNESSES: Alan Fernandez Chris Grad

ADMINISTRATIVE LAW JUDGE: Eric A. Bryant _____________________________________________________________________

Complainant brings this action claiming that Respondent performed work in violation of local zoning ordinances on property owned by Complainant and leased to others. Complainant also claims that Respondent failed to correct the damage done to the property. Respondent asserts that it did not do any work on the property. This tribunal entered the complaint file received from the Registrar of Contractors into the record, along with marked Exhibits A and B submitted by Complainant. The parties presented evidence and testimony at the hearing. Based upon the entire record, the Administrative Law Judge makes the following Findings of Fact, Conclusions of Law, and Recommended Order finding no violation. FINDINGS OF FACT 1. Respondent is the holder of a license A.252719-C, a general engineering commercial contractor’s license issued by the Registrar of Contractors (“ROC”). Chris Grad (“Grad”) is Respondent’s sole Member. Mike Larsen (“Larsen”) is Respondent’s Qualifying Party. 2. In January 2010, Complainant leased undeveloped commercial property to three individuals acting together, one of whom was Mike Larsen. The three individuals each signed the lease agreement. They identified themselves in the lease agreement as “dba MLS Communications LLC.” The property was to be used to store trailers and large drilling equipment used in construction. 3. According to uncontested testimony by Complainant’s Managing Member Alan Fernandez (“Fernandez”), the three tenants informed Complainant that some improvements would be done on the property by Respondent. Larsen gave Fernandez a copy of Respondent’s license.[1] Improvements were made that included two large holes on the property, but it is unclear who did this work. These holes were not re-filled when the three tenants vacated the property. Complainant filed a complaint with the ROC, believing that Respondent dug the holes and did not re-fill them. Complainant paid another company $2,225.00 to back fill and compact the holes.[2] 5. Chris Grad testified that he created the Respondent company and acquired Mike Larsen as an employee and the Qualifying Party for the license, but that Respondent never did any business. He provided state tax return information showing that Respondent has never claimed any taxable income since Respondent was licensed in February 2009. He testified that he never paid Larsen any wages because no work was done. Nevertheless, Larsen has always been and is currently Respondent’s Qualifying Party on the license. 6. As part of Respondent’s answer to the complaint, Respondent attached a copy of an e-mail sent from Larsen to Fernandez dated June 25, 2010. In it, Larsen suggests that Respondent was not involved in the changes made to Complainant’s property. 7. This tribunal concludes that the evidence is not sufficient to show that Respondent performed the work complained about in Complainant’s complaint. Complainant’s evidence is completely circumstantial and not of much weight. 8. The evidence supports a finding that Respondent has not done any contracting work since it has been licensed. CONCLUSIONS OF LAW 1. The burden of proof at an administrative hearing is generally upon a complainant.[3] Further, the standard of proof at hearing is by preponderance of the evidence.[4] 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.[5] Complainant has not met that burden. 2. The Citation and Complaint alleges violations of Arizona Revised Statutes (A.R.S.) § 32-1154(A)(2) and (A)(3) by way of ROC Rule R4-9-109. Subsection (A)(2) requires contractors to build in accordance with plans, specifications, and building codes. Subsection (A)(3) prohibits violating any ROC rule, namely R4-9-109 which prohibits doing business under a name other than the name on the license. 3. As found above, there is not a preponderance of evidence showing that Respondent performed construction work on Complainant’s property or did any business under either Respondent’s own or another name. Therefore, the evidence does not support a conclusion that Respondent violated the ROC statutes. 4. There being no violations, this matter should be dismissed. RECOMMENDED ORDER Based on the foregoing, it is hereby recommended that Citation and Complaint 2010-[number redacted] against Respondent Impressions Construction, LLC be dismissed.

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 25, 2011.

/s/ Eric A. Bryant Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors ----------------------- [1] Exhibit B. [2] Exhibit A. [3] Utah Construction Company v. Berg et al, 68 Ariz. 285, 205 P.2d 367 (1949). [4] Smith v. Arizona Dept. of Transportation, 146 Ariz. 430, 706 P.2d 756 (App. 1985). [5] Culpepper v. State, 187 Ariz. 431, 437, 930 P.2d 508, 514 (Ct. App. 1996).

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