ALJDEC decisions subject to certification as final

2010A-857442-ROC · Registrar of Contractors · 2010-07-14

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: July 13, 2010 at 8:15 a.m. APPEARANCES: The Complainant appeared on his own behalf. The Respondent appeared through its attorney, Richard Gramlich. 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, Baldwin Diversified Development and Contracting, LLC (LLC) is the holder of a Class B- License (No. 239875) issued by the Registrar of Contractors. 2. There was no dispute that the Complainant entered into a written agreement with Baldwin Log Homes, Inc., a Montana Corporation (“Log Homes” herein). 3. There was no dispute that in accordance with the terms of the written agreement Log Homes constructed a shell for a log house in the state of Montana and then dismantled and transported the shell of the log house to Happy Jack, Arizona. 4. There was no dispute that when Log Homes began to construct the log home shell on the Complainant’s property in Happy Jack, Arizona the Complainant became concerned about whether Log Homes possessed valid workman’s compensation and liability insurance and demanded that Log Homes either produce written proof of insurance or cause the remaining construction of the shell for the log home to be completed by a properly licensed contractor. 5. Credible testimony established that the remainder of the shell for the log home was then completed by a licensed contractor. 6. When the construction of the log home shell was completed the Complainant became embroiled in a dispute with Log Homes over the construction of the stairway in the log home shell. 7. Credible testimony and evidence established that Log Homes did construct the stairway and that the stairway failed to comply with applicable workmanship and industry standards. 8. When Log Homes refused to correct the problems with the stairway the Complainant utilized employees from the Complainant’s own licensed contracting company to properly correct and complete the construction of the log stairway at a cost of $4,400.00. 9. The Complainant then demanded that Log Homes reimburse him for his expenses in properly correcting the stairway so that the new log residence could be completed. 10. When Log Homes refused to reimburse the Complainant for his expenses in correcting and completing the log stairway the Complainant filed a complaint against Baldwin Log Homes/Dennis and Randy Baldwin with the Registrar of Contractors. 11. The Complaint provides, in relevant part, as follows: #3. Contractor also does not have a valid AZ License and states he can do business in the state of AZ under his son’s License Baldwin Diversified Development and Contracting, ROC# 239875, which has also suspended as of 11/30/09. The Russells never had a contract with “Baldwin Diversified.” 12. The Complainant’s written Complaint was then processed against the Respondent’s Class B- License. 13. There was no dispute that Dennis Baldwin and Pete Baldwin are related and that Dennis Baldwin is a non-managing member of the Respondent LLC. 14. Credible testimony and evidence established that Log Homes and the Respondent are completely separate legal entities wherein the father, Dennis Baldwin, operates a log home and log home shell manufacturing operation in the State of Montana and the son, Pete Baldwin, operates Baldwin Diversified as a licensed contractor in the State of Arizona. 15. There was no credible evidence that the Respondent had anything to do with the manufacture of the Complainant’s log home shell in the state of Montana. 16. There was no credible evidence that the Respondent received any of the monies paid by the Complainant to Log Homes for the manufacture or construction of the Complainant’s log home shell. 17. There was no credible evidence that the Respondent entered into or participated in a construction contract with the Complainant. 18. There was no credible evidence that the Respondent performed any construction work on the Complainant’s construction project. 19. The credible evidence of record is insufficient and fails to support a finding that the Respondent aided or abetted the unlicensed actions of Log Homes. 20. There was no credible evidence that the Respondent acted in the capacity of a contractor under another’s name. 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 his burden of proof to establish that the Respondent violated the applicable charged sections of the state’s contracting laws. Therefore, the credible evidence of record did not sufficiently sustain a finding of violations by the Respondent of the provisions of A.R.S. §32-1154A, as charged in the Citation.

RECOMMENDed order

In view of the foregoing, it is recommended that this matter shall 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, July 14, 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