ALJDEC decisions subject to certification as final

2010A-308476466-ROC · Registrar of Contractors · 2011-06-14

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: June 14, 2011, at 1:00 p.m. APPEARANCES: The Complainant appeared through its authorized representative, Robert Czech. The Respondent appeared through its authorized representative, Andrew Surdo. 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 is the holder of a Class B (145694) License issued by the Registrar of Contractors. 2. This is a residential matter where the Complainant performed low voltage pre-wire and trim work as a subcontractor on a residential project wherein the Respondent was acting in the capacity of a general contractor. 3. There was no dispute that the Complainant completed the construction work at issue in a professional and workmanlike manner. 4. Credible testimony and evidence established that the owner of the residence at issue refused to give the Respondent authorization to pay the Complainant’s final invoice on the basis that the total amount of money claimed as due and owing in the Complainant’s final invoice exceeded the total of the line items set forth in the Complainant’s construction proposal by over $2,000.00. 5. When the Respondent refused to pay the Complainant the final $2, 290.57 the Complainant claimed as due and owing for the construction work at issue the Complainant filed a formal complaint against the Respondent with the Registrar of Contractors. 6. Credible testimony and evidence, presented at hearing, demonstrated a dispute between the parties regarding what, if any, amount of money is due and owing to the Complainant from the Respondent. 7. The Respondent’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 the Complainant. 8. Credible testimony and evidence established that the resolution of the good faith money dispute between the parties will necessarily involve a monetary adjudication and can be resolved in a civil court of competent jurisdiction. 9. The credible testimony and evidence of record is insufficient and fails to support a finding that the Respondent has failed to pay monies in excess of seven hundred and fifty dollars when due for materials or services rendered in connection with the Respondent’s operations as a contractor. 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 the requisite burden of proving the existence of a valid liquidated debt properly due and owing by the Respondent and thus, has not sustained the burden of proving that the Respondent has committed the violation charged herein. 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, June 14, 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