ALJDEC decisions subject to certification as final

2010A-51996-ROC · Registrar of Contractors · 2010-08-16

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: August 5, 2010 at 8:00 a.m. APPEARANCES: The Complainant appeared through its authorized representative, Rob Thomson. The Respondent appeared through its attorney, David Gerson. 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 License No. B.094946-R issued by the Registrar of Contractors. 2. This is a residential matter where the Complainant performed electrical work as an electrical subcontractor on a large custom speculation house at 527 West Torolita Mountain Circle, Tucson, Arizona that was being built by the Respondent in its capacity as a general contractor. 3. Undisputed credible testimony and evidence established that the Complainant initially submitted a written proposal for the performance of the electrical work on the construction project. 4. There was no dispute that the parties then disregarded the terms of the Complainant’s written proposal and entered into an oral agreement wherein the Complainant agreed to perform the electrical work on a time and materials basis. 5. The construction project proceeded smoothly until the Complainant submitted its final invoice for the electrical work on the construction project. 6. The Complainant submitted its final invoice to the Respondent in the sum of $106,680.98 for the electrical work on the residence on May 2, 2007. 7. Credible testimony and evidence established that the Respondent disagreed with the dollar amount of the final invoice and scheduled a meeting with the Complainant to resolve their differences regarding the final invoice. 8. There was no dispute that on May 7, 2007, the parties did have a meeting and that during the meeting the Respondent gave the Complainant a check for $75,000.00. 9. Undisputed credible evidence established that the check provided as follows: “Final Payment including completion of all unfinished work.” 10. There was no dispute that the Complainant accepted and cashed the check for $75,000.00. 11. On July 13, 2009, the Complainant filed a formal complaint against the Respondent with the Registrar of Contractors’ Sierra Vista Office. 12. The Complaint alleges that the Respondent had failed to pay the Complainant $31,680.98 for completed electrical work on the residence located at 527 West Tortolita Mountain Circle, Tucson Arizona. 13. At the hearing, the Complainant’s representative testified that he had entered into an oral agreement with the Respondent’s owner, Mr. Tom Mancuso, wherein the Respondent agreed to give the Complainant a check for $75,000.00 on May 7, 2007, and that the Respondent also agreed that it would pay the remaining $31,680.98 allegedly owed to the Complainant when the residence at 527 West Tortolita Mountain Circle sold. 14. The Respondent’s owner and representative, Tom Mancuso, testified that the Complainant agreed that the check for $75,000.00 was payment in full for all electrical work that was performed on the construction project. 15. The Respondent’s owner and qualifying party, Tom Mancuso, denied that there was any agreement for the Respondent to pay any additional money to the Complainant beyond the check for $75,000.00. 16. Mr. Mancuso admitted that he did inform the Complainant as a good will gesture that if the Respondent made any money off of the sale of the residence at 527 West Tortolita Mountain Circle, he would help the Complainant out and make up some of the monetary difference between the amount claimed by the Complainant in the Complainant’s final invoice and the amount that was actually paid to the Complainant for its final invoice. 17. Credible testimony and evidence established that the residence at 527 West Tortolita Mountain Circle actually sold during late July or early August, 2008 for $500,000.00 less than the asking price and that the Respondent made no profit for the construction project. 18. There was no dispute that the Complaint at issue was filed within two (2) years of the sale of the house at 527 West Tortolita Mountain Circle, Tucson Arizona. 19. Credible testimony and evidence, presented at hearing, adequately demonstrated a dispute between the parties regarding what, if any, amount of money is due and owing to the Complainant from the Respondent. 20. 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 Complainant failed to sustain the requisite burden of proving the existence of a valid liquidated debt properly due and owing by the Respondent to the Complainant and, thus, has not sustained the burden of proving that the Respondent has committed the violations charged herein. 5. 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. § 32-1154A (11) (Failure to pay monies in excess of $750.00) can be supported. . 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, August 16, 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