ALJDEC decisions subject to certification as final

2010A-308475219-ROC · Registrar of Contractors · 2011-04-28

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: April 13, 2011

APPEARANCES: Complainant appeared and was represented by attorney Evan Thompson; Respondent was represented by Managing Member and Qualifying Party Juan “Tony” Lamb.

WITNESSES: Emery Chukly Hector Ahumada, Complainant’s employee Tony Lamb

ADMINISTRATIVE LAW JUDGE: Eric A. Bryant _____________________________________________________________________

Complainant brings this action as an owner/builder claiming that Respondent, without legal excuse, abandoned the contract for which Respondent had been hired. Respondent denies the allegation, asserting that Respondent was not a party to the contract that is the basis for Complainant’s claim. This tribunal entered the complaint file received from the Registrar of Contractors into the record, along with Complainant’s Exhibits A through K. The parties presented evidence and testimony from the witnesses listed above. Based upon the entire record, the Administrative Law Judge makes the following Findings of Fact, Conclusions of Law, and Decision finding that Respondent abandoned the project and awarding restitution to Complainant.

FINDINGS OF FACT 1. Respondent is the holder of license B.229936-R, a general residential contracting license issued by the Registrar of Contractors (“ROC”). The license authorizes Respondent to operate as a general contractor for residential projects. Juan Antonio “Tony” Lamb is the Qualifying Party. 2. In October 2009, Complainant entered into a contract for stone tile work at his home with “Stone Source Int’l LLC Div. of Joshua Tree Building/Dev.” Complainant was acting as an owner/builder and signed the contract. Daniel Wang signed the contract for the contractor.[1] Neither Danny Wang nor Stone Source Int’l LLC holds a contracting license. 3. Part of the work was completed, and Complainant paid $75,000.00 of the $80,000.00 contract price to “Stone Source Int’l/Danny Wang.”[2] Some of the work was performed by Tony Lamb himself, as he testified at hearing. He testified that he worked on a portion of the project for Stone Source/Danny Wang and was paid by Danny Wang in cash. 4. A dispute arose between the parties and Complainant filed an ROC Complainant against Respondent on August 17, 2010. On August 30, 2010, Complainant, Danny Wang, and Tony Lamb met at a restaurant to try to work out the dispute. A written agreement had been developed by Complainant and at the meeting it was signed by Danny Wang and Complainant in Tony Lamb’s presence. The written agreement repeatedly refers to “Stone Source/Joshua Tree/Danny Wang” as one of the parties to it.[3] The written agreement required “Stone Source/Joshua Tree/Danny Wang” to finish the work covered by the original contract from October 2009. 5. Complainant reasonably believed that he was contracting with Respondent. 6. Evidence shows that Danny Wang was a Member of the Respondent LLC from October 12, 2009 to January 21, 2011.[4] It also shows that Tony Lamb was a member of “Stone Source Int’l, LLC” from August 4, 2009 to March 1, 2011.[5] There is no evidence that shows that Danny ‘Wang was not authorized to act on behalf of the Respondent LLC. 7. The written agreement was not fulfilled by “Stone Source/Joshua Tree/Danny Wang.” Complainant hired another contractor to finish the project at a total cost of $86,357.44.[6] Taking away the $5,000.00 that was left on the original contract, this leaves an amount of $81,357.44 that Complainant has paid above what he contracted with “Stone Source/Joshua Tree/Danny Wang.” 8. Tony Lamb testified at hearing that Danny Wang did not represent Respondent and had no authority to act on its behalf. In light of the other evidence submitted, his testimony is not credible. 9. The evidence shows that Respondent was a party to the August 2010 written agreement and failed to fulfill its terms. CONCLUSIONS OF LAW 1. The burden of proof at an administrative hearing is generally upon a complainant.[7] Further, the standard of proof at hearing is by preponderance of the evidence.[8] 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.[9] Complainant has met that burden. 2. The issue for decision in this matter is whether Respondent has violated (A.R.S.) § 32-1154(A)(1), which prohibits abandonment of a contract without legal excuse. As noted above, the evidence supports a conclusion that Respondent has abandoned the contract. 3. Danny Wang was a Member of the Respondent LLC and had apparent authority to act on its behalf. If Mr. Lamb’s description of the relationship between Respondent and Danny Wang were taken to be accurate, then Respondent was aiding and abetting an unlicensed contractor when it worked for Stone Source at Complainant’s home. It is more likely, and the evidence supports, that Danny Wang was acting within the authority of Respondent’s license, as he was a Member of Respondent at the time of the original contract and the August 2010 written agreement. 4. Respondent’s abandonment of the contract made it reasonable for Complainant to hire others to complete the work. Thus, a restitution award is warranted. RECOMMENDED ORDER IT IS RECOMMENDED that license B.229936-R, held by Joshua Tree Building and Development, LLC, be suspended beginning the effective date of the Registrar’s Order until the Registrar receives written proof that Respondent has paid Complainant $81,357.44 and the Registrar of Contractors 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, April 28, 2011.

/s/ Eric A. Bryant Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors ----------------------- [1] Exhibit A. [2] Exhibit B. [3] Exhibit D. [4] Exhibits H and I. [5] Exhibit K. [6] Exhibit F. [7] Utah Construction Company v. Berg et al, 68 Ariz. 285, 205 P.2d 367 (1949). [8] Smith v. Arizona Dept. of Transportation, 146 Ariz. 430, 706 P.2d 756 (App. 1985). [9] Culpepper v. State, 187 Ariz. 431, 437, 930 P.2d 508, 514 (Ct. App. 1996).

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