ALJDEC decisions subject to certification as final

2010A-308475712-ROC · Registrar of Contractors · 2011-04-06

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: April 6, 2011, at 8:00 a.m. APPEARANCES: Trinity Fire Protection Inc. appeared through its authorized representative, Charles R. Sullivan. Structures Inc. appeared through its authorized representative, Lon Palmer. 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. These matters were consolidated for hearing purposes since both matters would necessarily involve nearly the same witnesses and evidence. 2. Trinity Fire Protection Inc. is the holder of a Class K-16 (No. 154232) License issued by the Registrar of Contractors. 3. Structures Inc. is the holder of a Class KB-1 (No. 184378) License issued by the Registrar of Contractors. 4. This is a commercial matter in which Trinity Fire Protection Inc. performed construction work as a commercial fire protections systems installer for a construction project wherein Structures Inc. was functioning as a licensed general contractor. 5. On September 7, 2010, Trinity Fire Protection Inc. filed a formal complaint against Structures Inc. with the Registrar of Contractors alleging that Structures Inc. had failed to pay Trinity Fire Protection Inc. the remaining $10,493.23 allegedly due under the parties’ construction agreement for final retention and agreed upon change orders. 6. Structures Inc. denied that it owed Trinity Fire Protection Inc. any money and on September 28, 2010, Structures Inc. filed a complaint against Trinity Fire Protection Inc. alleging that Structures Inc. had suffered money damages in the total amount of $32,472.48 due to the poor workmanship of Trinity Fire Protection Inc. 7. At the consolidated hearing, Trinity Fire Protection Inc. reduced its claim of monies allegedly owed to it by Structures Inc. to the sum of $6,993.23. 8. At the consolidated hearing Structures Inc. increased its claim of alleged damages allegedly caused by Trinity Fire Protection Inc. to an indefinite amount exceeding several million dollars. 9. There was no dispute that Trinity Fire Protection Inc. installed a fire sprinkler system in the new commercial building. 10. Credible testimony and evidence established that shortly after the construction project was completed, one of the fire sprinkler heads in the interior of the new commercial building turned on in the middle of the night and caused extensive water damage in the interior of the new commercial building. 11. The credible testimony and evidence of record is insufficient and fails to support a finding as to the cause of the sprinkler head turning on in the middle of the night. 12. The evidence of record adequately demonstrated a dispute between the parties regarding what, if any, amount of money is due and owing to Trinity Fire Protection Inc. from Structures Inc. 13. Structures Inc.’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 liquated sum is owed to Trinity Fire Protection Inc. 14. There was no credible evidence that Trinity Fire Protection Inc. abandoned a contract or refused to perform in this matter. 15. The credible testimony and evidence of record is insufficient and fails to support a finding that Trinity Fire Protection Inc. failed to perform its construction work in a professional and workmanlike manner. 16. Credible testimony and evidence established that Trinity Fire Protection Inc. failed to display its contractor’s license number on Trinity Fire Protection Inc.’s letterhead in its written communications filed with the Registrar of Contractors in violation of the applicable provisions of A.R.S. § 32-1124 (B) (Display of license).

17. Notice is taken of Trinity Fire Protection Inc.’s good prior License record with the Registrar of Contractors. 18. Notice is taken of Structures Inc.’s good prior License record with the Registrar of Contractors. CONCLUSIONS OF LAW 1. 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. 2. A Complainant has the burden of demonstrating by a preponderance of the evidence that the named 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). 3. 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). 4. 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). 5. Trinity Fire Protection Inc. failed to sustain its burden of proof to establish that Structures Inc. violated the provisions of A.R.S. § 32- 1154 (A) (11) (Failure to pay monies in excess of seven hundred fifty dollars when due) as charged in the Citation and Complaint. 6. Structures Inc. failed to sustain its burden of proof to establish that Trinity Fire Protection Inc. violated the provisions of .A.R.S. § 32-1154 (A) (1) (Abandonment) and A.R.S. § 32-1154 (A) (3) (Failure to perform work in a professional and workmanlike manner) as charged in the Citation and Complaint. 7. Credible testimony and evidence supported findings which establish that Trinity Fire Protection Inc. violated the charged provisions of A.R.S. § 32-1154 (A) (13), namely A.R.S. § 32-1124 (B) (Display of license). RECOMMENDed orders 1. In view of the foregoing, it is recommended that the Citation and Complaint against Structures Inc. be dismissed. 2. In view of the foregoing, it is recommended that commencing on the effective date of the Registrar’s Order, Trinity Fire Protection Inc.’s License be suspended until the Registrar of Contractors receives and accepts written proof that the Trinity Fire Protection Inc. has fully complied with the provisions of A.R.S. § 32-1124 (B) (Display of license). It is further recommended that if Trinity Fire Protection Inc. properly accomplishes the above described action, on or before the effective date of this Order, then the above provided License suspension shall not take place and this matter shall be closed. 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, April 6, 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