ALJDEC decisions subject to certification as final

2010A-308475381-ROC · Registrar of Contractors · 2011-03-28

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: March 16, 2011, at 1:00 p.m. APPEARANCES: The Complainant appeared through its authorized representative, Shane Dryansky. The Respondent appeared through its attorney, Ryan Linder. 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’s License KB-1 (No. 189458) was voluntarily canceled on June 21, 2010. 2. On August 2, 2010, the Complainant filed a formal complaint against the Respondent with the Registrar of Contractors alleging that the Respondent owed the Complainant the sum of $15,000.00 for construction materials delivered to the Respondent. 3. At the hearing, the Complainant asserted that the Respondent actually owed the Complainant the total sum of $19,905.91 for construction materials that the Complainant delivered to the Respondent. 4. The Complainant asserted that the Complainant had voluntarily written off $4, 905.91 of the debt and that it was only seeking the sum of $15,000.00 in its complaint. 5. The Respondent asserted that the Complainant’s charges were inaccurate or invalid and that the $15,000.00 claimed by the Complainant included invoices for materials delivered to Congrove Construction rather than Congrove Construction LLC. 6. Credible testimony and evidence established that the Complainant’s charges did include invoices directed to Congrove Construction for materials delivered to Congrove Construction. 7. Credible testimony and evidence established that Congrove Construction LLC and Congrove Construction are separate legal entities. 8. Credible testimony and evidence established that Congrove Construction is not a licensed contractor within the State of Arizona. 9. The credible testimony and evidence of record is insufficient and fails to support a finding that the Respondent Congrove Construction LLC is in any way responsible for the debts of Congrove Construction. 10. The parties were in sharp dispute as to validity of the remaining invoices that were for construction materials allegedly delivered by the Complainant to the Respondent. 11. Credible testimony and evidence demonstrated a dispute between the parties regarding what, if any, amount of money is due and owing to the Complainant from the Respondent. 12. The Respondent’s position in this 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. 13. The parties’ good faith money dispute will necessarily involve a monetary adjudication and 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 charged provisions of A.R.S. § 32-1154 (A) (11) (Failure to pay monies in excess of seven hundred fifty dollars when due). RECOMMENDED ORDER In view of the foregoing, it is recommended that this Citation, together with the Complaint upon which it is based, 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 28, 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