ALJDEC decisions subject to certification as final

2010A-308475404-ROC · Registrar of Contractors · 2011-06-22

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: June 8, 2011, at 8:00 a.m. APPEARANCES: R G and Sons Plumbing appeared through its authorized representative, Rudy A. Garcia. T C T Construction Inc. appeared through its authorized representative, Terry Gilbert. ADMINISTRATIVE LAW JUDGE: M. Douglas

Evidence and testimony were presented and the following Findings of Fact, Conclusions of Law and Recommended Orders are made:

FINDINGS OF FACT 1. R G and Sons Plumbing Inc. (Corp.) (“RG”) is the holder of a Class L-37 (No. 107477) License issued by the Registrar of Contractors. 2. T C T Construction Inc. (Corp.) (“TCT”) is the holder of a Class KB-1 (No. 227583) License issued by the Registrar of Contractors. 3. On August 34, 3010, RG filed a formal complaint with the Registrar of Contractors against TCT alleging that TCT had failed to pay RG a retention of $3,400.40 for plumbing work that the RG performed for TCT on a commercial construction project wherein TCT was operating in the capacity of a licensed contractor. 4. On November 10, 2011, TCT filed a formal complaint against RG alleging that RG failed to perform its plumbing work in a professional and workmanlike manner and that RG failed to complete all of the plumbing work on the commercial construction project at issue. 5. The parties were unable to resolve their disputes and the matters were scheduled for a consolidated administrative hearing. 6. The matters were consolidated for administrative hearing since both complainants involved the same parties, the same construction project and the same witnesses. 7. Undisputed credible testimony and evidence established that the owner of the commercial construction project stopped all work on the commercial construction project before the construction project was fully completed and entered into bankruptcy proceedings. 8. The credible evidence of record is insufficient and fails to support a finding that RG abandoned or failed to complete the construction project at issue without legal excuse. 9. The credible testimony and evidence of record is insufficient and fails to support a finding that RG failed to perform its plumbing work in a professional and workmanlike manner. 10. There was no dispute that RG has not been paid the ten percent retention of $3,400.00 that was due upon completion of the commercial construction project. 11. Credible testimony and evidence established that the owner of the commercial construction project stopped all work on the project before RG was able to complete all of the agreed upon plumbing work on the construction project. 12. RG asserts that the cost of completing the plumbing work on the commercial project at issue would be less than $1,000.00. 13. TCT asserts that an alternative licensed contractor has submitted a bid for completing the plumbing work on the commercial project in excess of the retention amount claimed by RG. 14. Credible testimony and evidence established that the commercial construction project at issue has now changed hands and that neither party has access to the commercial construction site at issue. 15. The credible testimony and evidence of record adequately demonstrated a dispute between the parties regarding what, if any, amount of money is due and owing to RG from TCT. 16. TCT’s position in this money 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 RG. 17. The parties’ dispute regarding the claimed retention amount would necessarily involve a monetary adjudication and can be resolved in a civil court of competent jurisdiction. CONCLUSIONS OF LAW 1. A Complainant has the burden of demonstrating by a preponderance of the evidence that a 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 credible testimony and evidence of record failed to support a finding that RG failed to perform its plumbing work in a professional and workmanlike manner. 5. The credible testimony and evidence of record failed to support a finding that RG abandoned or failed to complete the construction project at issue without legal excuse. 6. TCT failed to sustain the requisite burden of proving that RG violated the charged provisions of A.R.S. § 32-1154 (A) (1) (Abandonment or failure to complete) and A.R.S. § 32-1154 (A) (3), namely, A.A.C. rule R4- 9-108 (Failure to perform work in a professional and workmanlike manner). 7. The Registrar of Contractors, acting through an administrative disciplinary hearing, is not empowered by law to adjudicate amounts alleged to be due and owing in the face of a good faith dispute on such amounts. Until and unless any claimed obligation is reduced to judgment by a civil court of competent jurisdiction, no violation by TCT of the provisions of A.R.S. § 32-1154 (A) (11) (Failure to pay monies in excess of seven hundred fifty dollars) can be supported. 8. RG failed to sustain the requisite burden of proving the existence of a valid liquidated debt properly due and owing by TCT and thus, has not sustained the burden of proving that TCT has committed the violation charged herein. RECOMMENDED ORDERS 1. (2010A-[number redacted]-ROC) In view of the foregoing, it is recommended that the Citation and Complaint against T C T Construction Inc. (Corp.) be dismissed. 2. (2010A-[number redacted]-ROC) In view of the foregoing, it is recommended that the Citation and Complaint against R G and Sons Plumbing Inc. (Corp.) 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 these Orders will be 40 days from the date of the certification.

Done this day, June 22, 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