ALJDEC decisions subject to certification as final

2011A-4500-ROC · Registrar of Contractors · 2012-01-31

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: January 18, 2012, at 1:00 p.m. APPEARANCES: The Complainant appeared through its authorized representative, Mike Connor. The Respondent appeared through its authorized representative, Bill Roush. 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 K-11 (No.262055) License issued by the Registrar of Contractors. 2. There was no dispute that the Complainant performed drafting work and prepared solar electric designs for multiple residential and commercial projects. 3. Credible testimony and evidence established that the parties’ utilized oral agreements for the residential construction projects and written agreements for the larger commercial projects. 4. Credible testimony and evidence established that the parties are in sharp disagreement as to the payment terms of the oral agreements for the residential construction projects. 5. Credible testimony and evidence established that the Respondent declined to pay the Complainant for the full amount of the Complainant’s invoices for the residential construction projects. 6. Credible testimony and evidence established that the Respondent then attempted to pay a lesser amount based on the Respondent’s determination of the reasonable value of the drafting and design work performed by the Complainant. 7. Credible testimony and evidence established that the Respondent also failed to pay the Complainant in full for two of the written commercial construction agreements despite the fact that the payment terms were an integral part of the written construction agreements. 8. Credible testimony and evidence established that the Complainant repeatedly demanded payment in full for all of the money allegedly due to the Complainant for its completed drafting and design work. 9. When the parties were unable to resolve their financial dispute, the Complainant filed a formal complaint against the Respondent alleging that the Respondent owed the Complainant the total sum of $10,750.00 for its completed drafting and design work. 10. Credible testimony and evidence, presented at hearing, established that the Respondent’s accounting records establish that the Respondent undisputedly owed the Complainant a balance of $4,650.00 for the Complainant’s completed drafting and design work. 11. Credible testimony and evidence established that the Respondent sharply disputes that it owes the Complainant any money over the sum of $4,650.00. 12. Credible testimony and evidence adequately demonstrated a dispute between the parties regarding what, if any, amount of money is due and owing to the Complainant from the Respondent above the sum of $4,650.00. 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 over the amount of $4,650.00 is owed to the Complainant. 13. The parties monetary dispute regarding the Complainant’s claim for monies in excess of $4,650.00 is found to be a good faith money dispute which must be necessarily resolved, if at all, in a civil court of competent jurisdiction. 14. Credible testimony and evidence established that the Respondents failure to pay the Complainant the undisputed sum of $4,650.00 was not in good faith and accordingly, under all of the facts and circumstances presented herein Respondent’s conduct is found to constitute a violation of 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 services rendered in connection with the licensee’s operations as a licensed contractor). 15. 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. Credible testimony and evidence supported findings which 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 services rendered in connection with the licensee’s operations as a licensed contractor). 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 suspended until the Registrar receives and accepts written proof that the Respondent has paid the sum of $4,650.00 to the Complainant. It is further recommended that if Respondent provides acceptable written proof that it has paid the Complainant the above described sum of money, on or before the effective date of the Registrar’s Order, then the aforementioned license suspension shall not take place and this matter shall be closed. 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 31, 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