ALJDEC decisions subject to certification as final

2011A-4397-ROC · Registrar of Contractors · 2012-02-15

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: February 2, 2012, at 8:15 a.m. APPEARANCES: The Complainant appeared through its authorized representative, Stephan Machos. The Respondent appeared through its attorney, Thomas Moring, Esq., Pak & Moring PLC 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 License No. B.187588-R issued by the Registrar of Contractors. 2. There was no dispute that the Complainant performed construction work as a subcontractor for the construction of rammed earth walls for a residence located at 6565 West Almosta Ranch Road, Yavapai County Arizona. 3. There was no dispute that the Respondent was the general contractor for the construction project at issue. 4. Credible testimony and evidence established that the parties’ construction agreement specified that time was of the essence and that the Complainant agreed to provide the required labor, materials and equipment to perform the construction project in a timely manner. 5. The Complainant asserts that the Respondent has failed to pay the Complainant the final draw and retention amounts due to the Complainant for the Complainant’s completed construction work on the residence at issue. 6. The Respondent asserts that the Complainant failed to provide the rammed earth product that matched the required approved rammed earth material product sample in a timely manner. The Respondent further asserts that the Complainant’s failure to provide the approved rammed earth material product in a timely fashion caused time delays to the construction project’s critical path, resulting in additional costs to the owner of the construction project. 7. There was no dispute that the initial color formula for the rammed earth product utilized by the Complainant was incorrect and failed to match the approved color formula for the construction project. 8. Credible testimony and evidence established that the completion of the Complainant’s construction work on the construction project was delayed due to the necessity of reformulating the initial color formula and then obtaining new rammed earth color materials for the construction project. 9. Credible testimony and evidence established that the construction project at issue was delayed by approximately twenty four (24) working days as a result of the Complainant’s failure to complete its construction work in a timely manner. 10. Credible testimony and evidence established that the time delays caused by the Complainant resulted in extra costs to the owner of the construction project totaling the sum of $34,992.00. 11. Credible testimony and evidence established that the owner of the construction project directed the Respondent not to pay the Complainant’s final draw request of $13,929.00 and to withhold any retention amount allegedly due to the Complainant to offset the owner’s extra costs of $34,992.00 incurred as a result of the time delays caused by the Complainant. 12. The credible 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. The Respondent’s position in this dispute is found under all of the circumstances to have been asserted in good faith and therefore, precludes a finding that a liquidated sum of money is owed to the Complainant. 13. The parties’ good faith money dispute will necessarily involve a monetary adjudication and may be resolved in a civil court of competent jurisdiction. 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 committed the violation 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). 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, February 15, 2012. /s/ M. Douglas Administrative Law Judge

Originally transmitted electronically on February 21, 2012, to:

William A. Mundell, Director Registrar of Contractors

Resubmitted electronically with corrections on March 19, 2012

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