ALJDEC decisions subject to certification as final

2010A-308476337-ROC · Registrar of Contractors · 2011-05-12

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: April 28, 2011, at 8:00 a.m. APPEARANCES: Unique Enterprises Inc. (Inc.) appeared through its attorney, Emilie Bell Esq. Honeyman A C LLC (LLC) appeared through its attorney, Ernest Shaver. 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. Honeyman A C LLC (LLC) (“Honeyman”) is the holder of a Class L-39 (No. 235073) License issued by the Registrar of Contractors. 2. Unique Enterprises Inc., (“Unique”) is the holder of a Class KB-1 (No. 159340) License issued by the Registrar of Contractors. 3. These two matters were consolidated for hearing because both cases involved the same parties and nearly the same witnesses and evidence. 4. On October 1, 2010, Honeyman filed a formal complaint against Unique alleging that Unique owed Honeyman the sum of $17,820.00 for completed HVAC work on a remodeling project located at 8388 E. Hartford Drive, Scottsdale, Arizona. 5. On October 6, 2010, Unique filed a formal complaint against Honeyman alleging that Honeyman had abandoned the construction job at issue, overbilled for its construction work, demanded money for construction work that had not been completed, used unlicensed contractors, failed to pay its material suppliers for the construction project, and had encouraged the material suppliers to file liens against the property at issue. 6. On December 10, 2010, the Registrar of Contractors issued a Citation and Complaint against Unique charging a possible violation of A.R.S. § 32- 1154 (A) (11) (Failure to pay monies in excess of seven hundred fifty dollars when due). 7. On December 16, 2010, the Registrar of Contractors issued a Citation and Complaint against Honeyman charging possible violations of A.R.S. § 32- 1154 (A) (1) (Abandonment), A.R.S. § 32-1154 (A) (9) (Failure to complete a construction project for price stated in contract), and A.R.S. § 32- 1154 (A) (10) (Aiding and abetting a license or unlicensed person to evade this chapter). 8. The credible testimony and evidence of record is insufficient and fails to support a finding that Honeyman aided or abetted a licensed or unlicensed person to evade the licensing provisions of the State of Arizona. 9. The credible testimony and evidence of record is insufficient and fails to support a finding that Honeyman abandoned the construction project at issue. 10. The credible testimony and evidence of record is insufficient and fails to support a finding that Honeyman failed to complete a construction project or operation for the price stated in the contract or in any modification of the contract. 11. Credible testimony and evidence established a monetary dispute between the parties regarding what, if any, amount of money is due and owing to Honeyman from Unique. Unique’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 Honeyman.

12. The parties’ good faith monetary dispute 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 has 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. Honeyman failed to sustain the requisite burden of proving the existence of a valid liquidated debt properly due and owing by Unique and thus, has not sustained the burden of proving that Unique has committed the violation of A.R.S. § 32-1154 (A) (11) charged herein. 5. Unique failed to sustain its burden of proof to establish that Honeyman violated the applicable charged sections of the state’s contracting laws. Therefore, the credible testimony and evidence of record did not sufficiently sustain a finding of violations by Honeyman of the provisions of A.R.S. § 32-1154 (A) (1), A.R.S. § 32-1154 (9), and A.R.S. § 32-1154 (A) (10) as charged in the Citation and Complaint.

RECOMMENDED ORDERS 1. In view of the foregoing, it is recommended that the Citation and Complaint against Unique Enterprises Inc., be dismissed. 2. In view of the foregoing, it is recommended that the Citation and Complaint against Honeyman A C LLC (LLC) 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, May 12, 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