ALJDEC decisions subject to certification as final

2010A-308474701-ROC · Registrar of Contractors · 2011-02-01

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: January 24, 2011 at 1:00 p.m. APPEARANCES: The Complainant appeared through its authorized representative, Mark Haight. The Respondent appeared through its authorized representative, Sean Alexander. 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 C-21 (No. 180993) License issued by the Registrar of Contractors. 2. There was no dispute that the Complainant furnished landscaping material to the Respondent for use in construction projects wherein the Respondent was operating in its capacity as a licensed landscaping contractor. 3. The Complainant asserts that it stopped delivering construction material to the Respondent when the Respondent’s alleged unpaid debt reached $21,244.77. 4. The Complainant then contacted the Respondent by telephone and the parties orally agreed to resolve the matter. 5. The parties are in sharp dispute as to the terms of their oral agreement to resolve the dispute between them. 6. Credible testimony and evidence established that the Complainant then prepared a written agreement (Exhibit C-2) based upon what the Complainant understood to be the terms of the parties’ agreement. 7. There was no dispute that the written agreement was delivered to the Respondent and that the Respondent’s authorized representative signed the agreement and returned the agreement to the Complainant. 8. The Respondent asserts that its authorized representative signed the written agreement after striking out the numerical figure of $15,175.56 so that the agreement provides that the Respondent will make monthly payments to the Respondent until an undesignated balance is paid in full. 9. The Complainant asserts that the Respondent returned the signed written agreement with the dollar figure of $15,175.66 stricken out and the dollar figure of $14,928.56 inserted above the number that was crossed out. 10. There was no dispute that the Respondent paid the Complainant a total of $4,400.00 in monthly payments and that the Respondent then stopped making payments to the Complainant. 11. The Complainant then demanded the remaining $10,528.56 that the Complainant claimed was due and owing under the terms of the parties’ written agreement. 12. The Respondent refused to pay any additional money to the Complainant on the alleged basis that the Respondent had fully complied with the terms of the parties’ agreement by paying the Respondent the sum of $4,400.00 which allegedly represented payment in full for all construction materials that the Complainant had actually delivered to the Respondent. 13. The Complainant sharply disputed the assertion that the Complainant had ever agreed to accept the sum of $4,400.00 as payment in full for all of the construction materials delivered to the Respondent. 14. The Respondent denied that it had ever agreed to pay the Complainant the sum of $14,928.56 and asserted that the amount of $14,928.56 had been inserted into the parties’ written agreement after the Respondent’s authorized representative had signed the written agreement. 15. The credible testimony and evidence of record is insufficient and fails to support a finding as to who or which party inserted the sum of $14,928.56 into the parties’ written agreement. 16. There was no dispute that the inserted sum of $14,928.56 was not initialed by the Respondent’s representative. 17. The credible testimony and evidence of record is insufficient and fails to support a finding as to the amount of money that the Respondent actually agreed to pay the Complainant pursuant to the terms of the parties’ written agreement. 18. The credible evidence of record is insufficient and fails to support a finding as to the amount of money, if any, that may be owed to the Complainant from the Respondent apart from the terms of the parties’ signed agreement. 19. 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. 20. 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. . 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 and thus, has not sustained the burden of proving that the Respondent has committed the charged violation of A.R.S. § 32-1154 (A) (11). RECOMMENDED ORDER In view of the foregoing, it is recommended that this matter 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, February 1, 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