ALJDEC decisions subject to certification as final

2011A-3603-ROC · Registrar of Contractors · 2012-02-23

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: February 3, 2012

APPEARANCES: Complainant was represented by attorney Fidelis V. Garcia, accompanied by Member Jamie Limber; Respondent was represented by attorney Ed Marko, accompanied by corporate President and Qualifying Party Roy Cracraft.

WITNESSES: Mike Vore, Service and Lighting Manager for Respondent Geoffrey Lipetzky, Service Electrician for Respondent BJ Krystek, Operations Manager for Respondent Jamie Limber, Member of Complainant LLC

ADMINISTRATIVE LAW JUDGE: Eric A. Bryant _____________________________________________________________________

Complainant brings this action alleging that Respondent has charged Complainant more money than Complainant owes. Respondent denies the charge. The Citation and Complaint issued by the Registrar of Contractors in this matter alleges potential violations of A.R.S. § 32-1154(A)(9) for failing to complete a project for the price stated in the contract or any modification of the contract, and A.R.S. § 32-1154(A)(10) for aiding or abetting unlicensed contracting. At the start of the hearing, the parties agreed that the work at issue was performed on the Salt River Pima—Maricopa Indian Community, a sovereign nation whose land is not Arizona land. The parties also agreed that only that sovereign tribe has authority to regulate the practice of contracting on its land. Therefore, the Registrar of Contractors does not have jurisdiction to require licensing by contractors who work on that land. Contractors on that land are free to work with whomever the sovereignty allows. On that basis, the citation to A.R.S. § 32-1154(A)(10) was dismissed. Only the alleged violation of A.R.S. § 32-1154(A)(9) is addressed herein. This tribunal entered the complaint file received from the Registrar of Contractors into the record, along with Complainant’s Exhibits A and E and Respondent’s Exhibits 1 through 4. The parties presented evidence and testimony at the hearing. Based upon the entire record, the Administrative Law Judge makes the following Findings of Fact, Conclusions of Law, and Recommended Order finding no violation. FINDINGS OF FACT 1. Respondent is the holder of License No. L-11.100878-C, a specialty commercial contracting license issued by the Registrar of Contractors (“ROC”). That license authorizes Respondent to perform electrical work on commercial properties. Roy Cracraft is Respondent’s Qualifying Party. 2. Complainant is a business that sets up small, temporary holiday- theme parks with lighted displays and attractions aimed at families with young children.[1] The public is offered admission to the area for walking through and viewing the displays. In October 2009, the parties entered into an agreement in which Complainant agreed to perform electrical work at an area Complainant was preparing, located on the grounds of a closed-down Fiddlesticks Family Fun Park, a small amusement park that had a miniature golf-course area, two go-cart tracks (one for older children and adults and the other for younger children), a bumper-boat pool, and batting cages. Complainant used the grounds to create a Christmas-themed park with lights and mechanical displays for the holidays. Complainant wanted to open the park at Thanksgiving in late November, so there was a rush to have the work completed by then. 3. The evidence shows an initial misunderstanding between the parties as to the scope of the work covered by the written contract. Respondent presented credible testimony that it believed the written contract, for just under $5,000, only covered the golf-course portion of the job, and that the rest of the job was performed by Respondent on a time and material basis. There is reliable evidence that Respondent considered the entire job in two portions, golf-course (original work) and non-golf- course (additional work), at the time the work was done. Respondent believed it had verbal authorization to perform the additional work. Respondent has a good faith belief in that position, and the evidence supports that good faith belief. Complainant has paid the written contract amount to Respondent. Only the additional work covered by the verbal agreement is in dispute. 4. Complainant’s principal, Jamie Limber, filed the complaint in this matter for the stated reasons that “The contractor is attempting to overcharge for work that was already paid” and “The contractor is attempting to charge for work I did not authorize, as per the contractor’s written contract.”[2] When he testified at hearing, Mr. Limber agreed that Respondent performed “extra work,” meaning work outside the scope of the written contract. His disagreement as expressed in his testimony was that he did not agree to the amount that Respondent subsequently billed Complainant for that additional work on the time and material basis. He honestly testified, most significantly, that he believed that he owed Respondent some amount of further payment, but was not sure how much because he did not agree with Respondent about the price for the extra work. 5. The parties informed this tribunal that there is an ongoing action filed by Respondent against Complainant in Maricopa County Superior Court for payment for the additional work. 6. The evidence shows that the parties agree there was a base contract for approximately $5000 that was paid and is not in dispute. They also agree that additional work was performed, but the testimony of Complainant’s principal shows that Complainant does not allege that there was an agreement on the price for that additional work. Without such agreement, there can be no violation of the statutory provision cited. CONCLUSIONS OF LAW 1. The burden of proof at an administrative hearing is generally upon a complainant.[3] Further, the standard of proof at hearing is by preponderance of the evidence.[4] Therefore, Complainant bears the burden of showing, by a preponderance of the evidence, that Respondent has violated the statutes cited in the Citation and Complaint.[5] Complainant has not met that burden. 2. The issue in this matter is whether Respondent has violated A.R.S. § 32-1154(A)(9) that prohibits the failure of a licensee to complete a job for the price agreed by the parties. A necessary element of showing that violation is that there was an agreed-upon price. However, Complainant’s principal testified that there was no agreed-upon price. Therefore, Complainant’s charges, as modified and clarified in Jamie Limber’s testimony, lack the allegation of a necessary element for a violation of A.R.S. § 32-1154(A)(9). 3. This matter should be dismissed. RECOMMENDED ORDER Based on the foregoing, it is hereby recommended that Citation and Complaint 2011-3603 against Respondent Indicom Electric Company be dismissed.

In the event of certification of the 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 that certification.

Done this day, February 23, 2012.

/s/ Eric A. Bryant Administrative Law Judge Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors

----------------------- [1] One example is “Zoo Lights” at the Phoenix Zoo. Another is “Santa’s Workshop” areas that are set up in malls during Christmas-time. [2] From section 5 of the Complaint filed on June 21, 2011. [3] Utah Construction Company v. Berg et al, 68 Ariz. 285, 205 P.2d 367 (1949). [4] Smith v. Arizona Dept. of Transportation, 146 Ariz. 430, 706 P.2d 756 (App. 1985). [5] Culpepper v. State, 187 Ariz. 431, 437, 930 P.2d 508, 514 (Ct. App. 1996).

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