ALJDEC decisions subject to certification as final

2011A-2794-ROC · Registrar of Contractors · 2011-11-15

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: November 9, 2011, at 8:00 a.m. APPEARANCES: The Complainant appeared through its authorized representative, John Simms. The Respondent appeared through its authorized representative, Todd Kessel. 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 B (No. 107470) License issued by the Registrar of Contractors. 2. There was no dispute that the parties entered into an oral construction agreement wherein the Complainant agreed to perform tile work on the five bathrooms that were being constructed by the Respondent in its capacity of a general contractor. 3. The parties were in sharp dispute regarding the terms of their oral construction agreement. 4. Credible testimony and evidence presented at hearing established that the total sum to be paid to the Complainant for the completion of the agreed upon tile work in the five bathrooms, including the costs of all necessary setting materials, was to be the sum of $17,500.00. 5. Credible testimony and evidence established that the Respondent paid the Complainant the sum of $5,000.00 for the purchase of setting materials and other items necessary for the installation of the tile. 6. Credible testimony and evidence established that the Respondent paid the Complainant an additional $5,000.00 for labor during the course of construction. 7. There was no dispute that the Respondent was to provide all of the tile for the Complainant to install in the five bathrooms. 8. Credible testimony and evidence established that during the course of construction, the Respondent became very dissatisfied with the progress on the five bathrooms and that the Respondent informed the Complainant that the Complainant would be terminated from the construction site if the Complainant continued to fail to complete its tile work in a timely manner. 9. There was no dispute that the Respondent did terminate the Complainant from the construction site. 10. Credible testimony and evidence established that the Respondent then caused the tile work to be completed by two entities, one a licensed tile contractor and the other an unlicensed person. 11. Credible testimony and evidence established that the both the licensed contractor and the unlicensed person performed tile work on the construction project. 12. Credible testimony and evidence established that the unlicensed person was paid more than seven hundred fifty dollars for his work on the construction project. 13. When the Respondent refused to pay the Complainant’s final invoice for the construction project, the Complainant filed a formal complaint against the Respondent with the Registrar of Contractors alleging that the Respondent had failed to pay the Complainant the sum of $8,279.50 and that the Respondent had aided and abetted an unlicensed person to evade the state’s licensing laws. 14. The Complainant asserts that it is owed the full remaining value allegedly due pursuant to the terms of the parties’ oral construction agreement because the Complainant was wrongfully terminated from the construction project. 15. The Respondent asserts that the Complainant was terminated from the construction project because the Complainant was lackadaisical about showing up for work and that the Respondent was required to replace the Respondent in order to comply with the time constraints imposed by the owner of the construction project. 16. The Respondent further asserts that it was required to pay monies substantially over the original oral contract amount of $17,500.00 for the tile work in order to complete the agreed upon tile work in a timely manner. 17. The evidence of record adequately demonstrated a dispute between the parties regarding what, if any, amount of money is due and owing to the Complainant from the Respondent. 18. The Respondent’s position in this monetary 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. 19. Credible testimony and evidence established that the Respondent knowingly entered into a contract with an unlicensed person to complete a portion of the tile work started by the Complainant. 20. Notice is taken of the Respondent’s prior License record with the Registrar of Contractors. 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). It “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). 3. 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 Respondent has violated the charged provisions of A.R.S. § 32-1154 (A) (11) (failure to pay monies in excess of seven hundred fifty dollars when due). 4. Credible testimony and evidence supported findings which establish a violation by the Respondent of the charged provisions of A.R.S. § 32-1154 (A) (10) (aiding and abetting an unlicensed person to evade the provisions of this chapter). RECOMMENDED ORDER In view of the foregoing, it is recommended, commencing on the effective date of the Registrar’s Order, that the Respondent’s License be actively suspended for a period of five (5) days to be immediately followed by sixty (60) days of disciplinary probation. 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, November 15, 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