ALJDEC decisions subject to certification as final

2010A-308475093-ROC · Registrar of Contractors · 2011-03-03

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: February 18, 2011, at 8:15 a.m. APPEARANCES: The Complainant appeared through its authorized representative, John Botkin. The Respondent appeared through its authorized representative, Michael Amon. 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. 098241) License issued by the Registrar of Contractors. 2. On September 3, 2009, the Complainant issued a Request for Preliminary Pricing for the construction of new commercial construction facility in Strawberry, Arizona consisting of a 1500 square foot custom cycle shop, a 2000 square foot brew pup, and a 500 square foot café. 3. On September 17, 2009, the Respondent filed a written response to the request for preliminary pricing which provides, in pertinent part, as follows: Amon Builders, Inc. Proposes to perform services as a two part AIA 121 CMAR contract (See Attached) Phase I Preconstruction phase services $10,000.00 Phase II Construction phase GMP to be established during preconstruction/design phase.

Amon Builders, Inc would provide services on cost plus 7% fee plus tax. An estimate for this project at this time would be approximately $125.00 per sq. ft. 4. There was no dispute that the Complainant selected the Respondent as the general contractor for the commercial construction project. 5. On November 6, 2009, the parties entered into a written construction agreement. (Exhibit Nos. C-1 and R -20 through R-35). 6. There was no dispute that the parties’ written construction agreement provides that the Respondent is to be paid the sum of ten thousand dollars ($10,000.00) for the preconstruction portion of the construction project. 7. There was no dispute that the Complainant paid the sum of five thousand six hundred dollars ($5,600.00) to the Respondent to begin the preconstruction phase of the contract. 8. Credible testimony and evidence established the Respondent then proceeded to complete the preconstruction phase of the construction project. 9. Credible testimony and evidence established that when the Respondent progressed to the construction phase of the construction project, the Respondent found that it was unable to construct the Complainant’s commercial building for the one hundred dollars ($100) per square foot that the Complainant wanted to pay for the construction of the new commercial building. 10. Credible testimony and evidence established that the parties were unable reach a compromise regarding the actual cost of constructing the new commercial building and that the parties mutually agreed that the Complainant would retain an alternative general contractor to complete the construction project. 11. There was no dispute that the Complainant then retained an alternative general contractor to actually construct the new commercial building. 12. The Respondent then demanded that the Complainant pay the Respondent the remaining Four Thousand Four Hundred Dollars ($4,400.00) allegedly due to the Respondent under the terms of the parties’ preconstruction agreement. 13. On August 4, 2010, the Respondent mailed a preliminary twenty (20) day notice of a lien on the Complainant’s property. 14. On August 9, 2010, the Complainant filed a formal complaint against the Respondent with the Registrar of Contractors. 15. The Complainant asserts that the Respondent failed to comply with the terms of the parties’ written agreement, which allegedly places a maximum cost of Four Hundred Thousand Dollars ($400,000.00) for the complete construction of the new commercial building. 16. The Respondent asserts that the parties’ construction agreement as amended in Amendment No. 1 (Exhibit Nos. R-37 through R-43) of the parties’ construction agreement allegedly provides for payment on a cost plus profit type of payment agreement for the construction of the new commercial building. 17. Credible testimony and evidence established that the Respondent was to receive ten thousand dollars ($10,000.00) for completing the preconstruction portion of the parties’ construction agreement. 18. The parties are in sharp dispute as to whether the Respondent properly completed the preconstruction portion of the parties’ construction agreement. 19. The credible testimony of evidence of record is insufficient and fails to support a finding that the Respondent abandoned a construction contract or refused to perform without legal excuse. 20. The credible testimony and evidence of record is insufficient and fails to support a finding that the Respondent departed from or disregarded plans or specifications or any building codes. 21. The credible testimony and evidence of record is insufficient and fails to support a finding that the Respondent failed to perform its work in a professional and workmanlike manner. 22. The credible testimony and evidence of record adequately demonstrated a monetary dispute between the parties. The Respondent’s position in this monetary dispute is found under all of the circumstances to have been asserted in good faith. 23. The parties’ good faith monetary dispute can be resolved in a civil court of competent jurisdiction. 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 sections of the state’s contracting laws. Therefore, the credible evidence of record did not sufficiently sustain a finding of violations by the Respondent of the provisions of A.R.S. §32-1154 (A), as charged in the Citation. 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, March 3, 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