ALJDEC decisions subject to certification as final

2010A-585101-ROC · Registrar of Contractors · 2010-10-18

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: October 13, 2010 at 8:15 a.m. APPEARANCES: The Complainant appeared through its authorized representative, Joseph Zumwalt. The Respondent appeared through its authorized representative, George Ripps. 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. License No. Class B.152987-R issued by the Registrar of Contractors to the Respondent has been suspended for non-renewal. 2. On October 13, 2009 the Complainant filed a complaint against the Respondent alleging that the Respondent owed the Complainant the sum of $14,321.40 for labor and materials furnished for a residence located at 3287 Gold Canyon, Kingman Arizona and the sum of $6,594.30 for labor and materials furnished for a residence located at 3269 Gold Canyon, Kingman Arizona. 3. There was no dispute that the Complainant furnished labor and materials that were utilized in the construction of the two residences at issue. However, the Complainant asserts that the Respondent has failed to pay the Complainant for the labor and materials. 4. Credible testimony and evidence, presented at hearing, established that the Respondent issued a check to the Complainant for the sum of $6,594.30 on December 9, 2008. 5. There was no dispute that the check for $6,594.30 was accepted and cashed by the Complainant. 6. The Complainant asserted that the check for $6,594.30 may not have been for the construction project located at 3269 Gold Canyon, Kingman Arizona. 7. Credible testimony and evidence established that the Respondent issued a check to the Complainant for the sum of $9,070.30 on June 26, 2008. 8. Credible testimony and evidence established that the check for $9,070.30 was accepted and cashed by the Complainant. 9. The Complainant asserted that the check for $9,070.30 may not have been for the labor and material utilized in the residence located at 3287 Gold Canyon, Kingman, Arizona. 10. The Respondent’s representative, George Ripps, testified that that the check for $9,070.30 was partial payment for the Complainant’s labor and material utilized for the construction project located at 3287 Gold Canyon, Kingman Arizona and that he personally paid the Respondent’s representative, Joseph Zumwalt, the sum of $4,200.00 in cash on June 12, 2008. 11. The Complainant’s representative, Joseph Zumwalt, denied ever receiving any cash payment from the Respondent. 12. The credible testimony and evidence of record is found to be sufficient to support a finding that the Respondent did make a cash payment of $4,200.00 to the Complainant on June 12, 2008. 13. The credible testimony and evidence of record adequately demonstrated a monetary dispute between the parties regarding what, if any, amount of money is due and owing to the Complainant from the Respondent. 14. The Respondent’s position in this monetary dispute is found under all of the circumstances to have been asserted in good faith. 15. The credible evidence of record is found to be insufficient to support a finding that a liquidated sum of money is owed to the Complainant by the Respondent in this matter. 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 Citation and Complaint cites the “no pay” provision found in Arizona Revised Statutes (A.R.S.) § 32-1154(A) (11) that prohibits the failure of a licensee to pay monies in excess of $750.00 “when due for materials or services” when the licensee has the capacity to pay or when the licensee has been paid for the project. 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 violated the charged provisions of A.R.S. § 32-1154 (A) (11). 6. Parties to a contract may have a good faith dispute about their obligations under a contract that would be appropriate for a civil court action, but would not rise to the level of a disciplinary violation on a determination that the amount was due and owing as alleged in the Citation and Complaint.

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, October 18, 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