ALJDEC decisions subject to certification as final

2010A-308476058-ROC · Registrar of Contractors · 2011-04-26

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: April 6, 2011

APPEARANCES: Complainant Hammercraft is a sole proprietorship of Brian Stevenson, who appeared on his own behalf; Respondent was represented by Qualifying Party Anthony Powers, accompanied by Chris Powers and John Powers.

WITNESSES: Vernon Swaback, customer of Respondent Brian Stevenson Anthony Powers Chris Powers John Powers

ADMINISTRATIVE LAW JUDGE: Eric A. Bryant _____________________________________________________________________

Complainant brings this action claiming that he is owed $2,230.73 from Respondent for labor and materials Complainant provided as an independent contractor craftsman for Respondent. Respondent denies that it owes any money to Complainant. This tribunal entered the complaint file received from the Registrar of Contractors into the record, along with Complainant’s Exhibits 1 through and Respondent’s Exhibits A through F. The tribunal heard testimony from the witnesses above. Based upon the record, the Administrative Law Judge makes the following Findings of Fact, Conclusions of Law, and Recommended Order finding no violation because there is a good faith dispute between the parties. FINDINGS OF FACT 1. Respondent is the holder of license K-65.237533-D, a dual specialty contracting license issued by the Registrar of Contractors (“ROC”). It authorizes Respondent to install glass and glass products as a glazer. The Qualifying Party for the license is Anthony Powers. 2. The parties agree that Respondent hired Complainant to fabricate items for various projects, including stained glass sculptures for installation in Arizona and bronze fixtures to be installed in a home in Connecticut. The parties do not agree on the price for the items and what was included in the scope of work for the Connecticut home. Some of the contracts were verbal and others were written. Each claim will be addressed in turn. 3. Complainant’s first claim is that he is owed $137.00 from Respondent for fabrication of a call button pedestal shown in Exhibits A and 1. Complainant testified that the price of the verbal contract was $137.00 and that he was never paid. Anthony Powers testified that the price was $100.00 and that Complainant was paid that amount in cash. 4. Complainant’s second claim is based on a verbal agreement to fabricate steel clips for $200.00. Complainant submitted a photograph showing steel clips and a drawing of the clips in Exhibit 4. Respondent denies any knowledge of the verbal agreement upon which this claim is based. 5. Complainant’s third claim asserts that he is owed $200.00 from Respondent for fabrication of metal pieces for “The Skyfire,” a sculpture designed by Vernon Swaback and built by Respondent for Mr. Swaback. Complainant fabricated pieces for two Skyfire sculptures and testified that the verbal agreement between the parties was for a price of $400.00 for both. Respondent admits that it purchased the pieces for one of the sculptures which it then built and sold to Mr. Swaback, but denies that the agreement was that Respondent would purchase the other pieces. Respondent paid Complainant $200.00 for one set of pieces for the sculpture and asserts that the other sculpture was a speculation piece that would be displayed in an attempt to sell it. It has not sold and Respondent is willing to give it back to Complainant, but Complainant has refused. 6. Complainant’s fourth claim concerns three awards/trophies designed by Mr. Swaback and built by Respondent with metal pieces from Complainant. The parties admit a verbal agreement, but differ on the terms. Complainant states that he was hired to make metal pieces for three awards at a price of $200.00 each. He admits that he was paid $200.00 by Respondent. Respondent asserts that it ordered pieces for two awards at $100.00 each and that it paid Complainant $200.00 in full. The evidence submitted in Exhibits 3 and D show only two awards and, therefore, supports Respondent’s position. 7. Complainant’s fifth claim concerns work he did for the Connecticut home. Here, there are very brief written bids signed by both Complainant and Respondent.[1] The brief written bids do not address shipping and handling costs. Complainant claims that Respondent owes him $893.73 for costs of labor and materials to pack and load the items he fabricated into a truck for shipping. Respondent’s position is that those costs were part of the contract price, which totaled $29,400.00. 8. Finally, Exhibit F shows that Complainant filed a $2,500.00 contract claim in Maricopa County Justice Court small claims court for the Connecticut home items and received a judgment of $1,000.00. Respondent promptly paid that judgment.[2] This tribunal finds that the small claims judgment settled the claim between the parties concerning the Connecticut home. 9. The claims that remain are the claims based on verbal agreements that total $1,337.00. 10. This tribunal finds that the claims based on verbal agreements are too vague to show an amount due. This tribunal also finds that Respondent's position that it has paid Complainant is held in good faith.

CONCLUSIONS OF LAW 1. The burden of proof at an administrative hearing is generally upon a complainant.[3] Further, the standard of proof at hearing is by preponderance of the evidence.[4] 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.[5] Complainant has not met that burden. 2. Only one statutory provision is cited in the Citation and Complaint as a potential violation: the “no pay’ provision found in Arizona Revised Statutes (A.R.S.) § 32-1154(A)(11) that prohibits the failure of a licensee to pay monies in excess of $750 when due for materials or services provided in connection with construction activities when the licensee has the capacity to pay or when the licensee has been sufficiently paid for the project. The record does not support a conclusion that Respondent violated the no pay provision. 3. As found above, the evidence submitted does not show that any amount is due and owing to Complainant. The evidence shows only a good faith contractual dispute between the parties that does not warrant finding a violation of the no pay provision. 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 Respondent of the no pay provision can be supported. 4. This matter should be dismissed. RECOMMENDED ORDER Based on the foregoing, it is hereby recommended that Citation and Complaint 2010-[number redacted] against Respondent Powers Stained Glass LLC be dismissed.

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 26, 2011.

/s/ Eric A. Bryant Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors ----------------------- [1] Exhibit E. [2] Exhibit F. [3] Utah Construction Company v. Berg et al, 68 Ariz. 285, 205 P.2d 367 (1949). [4] Smith v. Arizona Dept. of Transportation, 146 Ariz. 430, 706 P.2d 756 (App. 1985). [5] See Culpepper v. State, 187 Ariz. 431, 437, 930 P.2d 508, 514 (Ct. App. 1996) (moving party bears burden of proof by preponderance of evidence in an administrative hearing).

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