ALJDEC decisions subject to certification as final

2010A-308476644-ROC · Registrar of Contractors · 2011-06-30

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: June 15, 2010, at 1:00 p.m. APPEARANCES: The Complainant appeared through its authorized representative, James Griffin. The Respondent appeared on his own behalf. 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 A-21 (No. 089516) License issued by the Registrar of Contractors. 2. Credible testimony and evidence established that the Complainant and the Respondent entered into an oral construction agreement for the Complainant to remove bushes, shrubs and trees from a construction site where the Respondent was performing work as a licensed contractor. 3. There was no dispute that the Complainant performed the agreed upon work in a professional and workmanlike manner. 4. The parties were in sharp disagreement as to the terms of their oral construction agreement. 5. The Complainant asserted that it was to be paid by the Respondent for the services rendered upon completion of the agreed upon construction work. 6. The Respondent asserts that the parties had specifically agreed that the Respondent would pay the Complainant for the agreed upon construction work when the Respondent was paid by the general contactor for its work at the construction site. 7. Credible testimony and evidence established that the Respondent’s written contract with the general contractor for the construction project provided that the general contractor was not required to pay the Respondent until the general contractor was paid by the owner. 8. Credible testimony and evidence established that the parties discussed the fact that the Respondent was not going to be paid until the general contractor was paid and that the parties’ construction agreement provided that the Complainant would receive payment for the Complainant’s services when the Respondent was paid for the Respondent’s construction services by the general contractor for the construction project. 9. Credible testimony and evidence established that the general contractor for the construction project at issue has not paid the Respondent for its construction work on the construction project at issue. 10. Credible testimony and evidence established that the Complainant contacted the general contractor and that the general contractor agreed to issue a joint check to the Complainant and the Respondent for the sum of $3,000.00 provided that the Respondent agreed to release the general contractor from any other claims for payment allegedly due from the general contactor to the Respondent. 11. There was no dispute that the Respondent declined to accept the offer from the general contractor for the construction project at issue. 12. Credible testimony and evidence established that the Respondent is currently pursuing a civil action against the general contractor for an amount substantially in excess of the $3,000.00 claimed by the Complainant. 13. Credible testimony and evidence established a monetary dispute between the parties regarding what, if any, amount of money is due and owing to the Complainant from the Respondent at this time. 14. The Respondent’s position in this 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. 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 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 the Respondent of the provisions of A.R.S. § 32-1154 (A) (11) can be supported. 5. 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 a violation of the charged provisions of A.R.S. § 32-1154 (A) (11) (Failure to pay monies in excess of seven hundred fifty dollars when due).

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 30, 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