ALJDEC decisions subject to certification as final

2011A-3579-ROC · Registrar of Contractors · 2012-01-19

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: January 10, 2012, at 8:00 a.m. APPEARANCES: The Complainant appeared through its attorney, Joshua Greer. The Respondent appeared through its attorney, Paul Loucks. 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 A (No. 251408) License issued by the Registrar of Contractors. 2. Credible testimony and evidence established that the Complainant entered into a subcontract agreement with the Respondent to perform commercial landscaping and irrigation work on the Arroyo Chico Urban Greenway-Reid Park construction project located at 900 South Randolph Way, Tucson, Arizona, wherein the Respondent was operating in its capacity as a licensed general engineering contractor. 3. Credible testimony and evidence established that during the course of construction, the parties experienced repeated difficulties at the construction site culminating with the Complainant issuing a Stop Work Order to the Respondent on September 10, 2010, and the Respondent issuing a Termination Letter to the Complainant on September 29, 2010, that became effective on October 1, 2010. 4. On June 20, 2011, the Complainant filed a formal complaint against the Respondent with the Registrar of Contractors alleging that the Respondent owed the Complainant the sum of $99,967.81 for its commercial landscape and irrigation work on the construction project. 5. There was no dispute that the parties are also involved in a concurrent civil action in Superior Court and that the parties are currently in arbitration in the concurrent civil action. 6. The Complainant produced testimony and evidence that the Respondent failed to comply with the terms of the parties’ construction agreement by failing to pay the Complainant in a timely and professional manner and that as a direct consequence thereof, the Complainant was forced to stop work on the construction project and was unable to fully pay its material suppliers. 7. The Respondent produced testimony and evidence that the Complainant failed to perform its construction work in a timely and professional manner and abandoned the incomplete construction project, that the Respondent was consequently required to enter into a construction agreement with an alternative contractor to correct and complete the construction project at a cost of over $180,716.00, and that several of the Complainant’s material suppliers have either been paid by the Respondent or are in the process of attempting to obtain payment from the Respondent for materials allegedly utilized by the Complainant on the construction project. 8. The Respondent produced testimony and evidence in support of its assertion that its costs of causing the unfinished construction project to be corrected and completed by an alternative licensed contractor together with the costs of paying the Complainant’s material suppliers substantially exceed the amount of money the Complainant claims as being due and owing in this matter. 9. The credible 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 in this matter. 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. 10. The parties’ good faith monetary dispute can be resolved, if at all, in the parties’ concurrent civil action. 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 its burden of proof to establish that the Respondent 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 for materials or services rendered in connection with the licensee’s operations as a contractor). RECOMMENDED ORDER In view of the foregoing, it is recommended that this mater 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, January 19, 2012.

/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