ALJDEC decisions subject to certification as final

2011A-544-ROC · Registrar of Contractors · 2011-07-29

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: July 29, 2011, at 8:00 a.m. APPEARANCES: The Complainant appeared through its authorized representative, David Dotson. The Respondent appeared through its attorney, Michael Thal. 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. 119886) License issued by the Registrar of Contractors. 2. Credible testimony and evidence established that the Complainant was a subcontractor on a construction project identified as the CDO Linear Park Soil Cement Project wherein the Respondent was functioning as the general contractor for the construction project. 3. When the project was completed the parties became embroiled in a monetary dispute regarding monies that the Complainant claimed as due and owing for labor and materials that were allegedly furnished for the construction project. 4. When the parties were unable to resolve their monetary dispute to the Complainant’s satisfaction the Complainant filed a formal complaint against the Respondent with the Registrar of Contractors. 5. The Complainant alleged that the Respondent owed the Complainant the sum of $178.406.00 for labor and materials utilized at the construction project. 6. The Respondent answered that the Complainant had been fully paid for all of the labor and materials that the Complainant actually provided for the CDO Linear Park construction project. 7. Credible testimony and evidence established that Pima County notified the Respondent that the County was concerned about the number of subcontractors working on the construction project and informed the Respondent that Norquay was required to perform with its own employees construction work amounting to not less than forty percent (40%) of the total contract amount of the construction contract. 8. Credible testimony and evidence established that the Complainant and the Respondent then entered into a second written construction agreement prepared by the Complainant’s attorney altering the terms of the parties first construction agreement wherein the Complainant agreed to forego performing the construction work that it had originally bid to perform and instead agreed to lease to the Respondent designated construction equipment at an agreed upon unit cost. 9. The parties further agreed that the Complainant would release most of its employees from their employment with the Complainant (as unpaid time off) so that they could work directly for the Respondent. 10. Credible testimony and evidence established that the designated employees were released from the Complainant’s employment and then employed and paid directly by the Respondent. 11. Credible testimony and evidence established that the Respondent fully paid all of the released employees for their work on the construction project at issue. 12. Credible testimony and evidence established that the Respondent fully paid the Complainant the agreed upon unit price for the rental of all equipment that was actually furnished to the Respondent by the Complainant. 13. Credible testimony and evidence established that the Respondent procured and paid the rental for a large mixing plant that the Complainant was required to provide pursuant to the terms of the parties’ original construction agreement. 14. The credible evidence of record is insufficient and fails to support a finding that the Respondent owes the Complainant any money for labor or equipment rentals for the construction project at issue. 15. The credible testimony and 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. 16. 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 in this matter. 17. The parties’ good faith money dispute can 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). 3. Proof by preponderance of the evidence “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). 4. The Complainant failed to sustain its burden of proving the existence of a valid liquidated debt properly due and owing by the Respondent. 5. The credible evidence of record did not sufficiently sustain a finding of a violation by the Respondent 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 materials or services rendered in connection with the Respondent’s operations as a licensed contractor). 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, July 29, 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