ALJDEC decisions subject to certification as final

2010A-335115-ROC · Registrar of Contractors · 2010-08-04

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: July 29, 2010 at 8:15 a.m. APPEARANCES: The Complainant appeared through its authorized representative, Shelly Thompson. The Respondent appeared through its authorized representative, Tara Harshman. 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’s Class B- License was suspended for lack of bond on January 16, 2010. 2. There was no dispute that pursuant to the parties’ construction agreement the Complainant performed specified roofing work for a residential construction project wherein the Respondent was acting in the capacity of a general contractor. 3. Credible testimony and evidence presented at hearing established that the Respondent paid the Complainant the sum of $500.00 as a down payment and that the Complainant then performed the agreed upon roofing work for the Respondent. 4. There was no dispute that the Respondent failed to pay the remaining sum due under the parties’ construction agreement. 5. Undisputed credible testimony and evidence established that the sum of $1,500.00 is the proper balance due and owing to the Complainant from the Respondent for the Complainant’s completed roofing work. 6. Credible testimony and evidence established that notwithstanding repeated attempts and billings over a prolonged period of time, said balance of $1,500.00 remains unpaid. 7. Credible testimony and evidence established that the Respondent Drewco Homes LLC (LLC) is no longer functioning as a contractor and that the Respondent has no assets and lacks the capacity to pay the $1,500.00 that is owed to the Complainant. 8. Undisputed credible testimony and evidence established that the individual members of the Respondent Drewco Homes LLC (LLC) have filed a chapter seven bankruptcy. 9. Credible testimony and evidence is found to be sufficient to support a finding that the Respondent Drewco Homes LLC (LLC) has not received sufficient monies as payment for the residential construction project at issue to pay the Complainant the $1,500.00 that the Respondent owes the Complainant for the Complainant’s labor and material. CONCLUSIONS OF LAW 1. A.R.S. § 32-1154A (11) provides, in relevant part, as follows: Failure by a licensee or agent or official of a licensee to pay monies in excess of seven hundred fifty dollars when due for materials or services rendered in connection with the licensee’s operations as a contractor when the licensee has the capacity to pay or, if the licensee lacks the capacity to pay, when the licensee has received sufficient monies as payment for the particular construction work project or operation for which the services or materials were rendered or purchased. 2. 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). 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 a 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. The Complainant failed to sustain its burden of proof to establish that the Respondent either has the capacity to pay or has received sufficient monies for its work on the residence at issue to pay the Complainant for its completed roofing work. Therefore, the credible evidence of record did not sufficiently sustain a finding of a violation by the Respondent of the provisions of A.R.S. §32-1154A (11) as charged in the Citation.

RECOMMENDED ORDER

In view of the foregoing, it is recommended that this matter shall be dismissed and that the Complainant be allowed to re-file its complaint if the Respondent resumes operations as a licensed contractor in the State of Arizona. 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, August 4, 2010.

/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