ALJDEC decisions subject to certification as final

2011A-5913-ROC · Registrar of Contractors · 2012-05-09

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: May 2, 2011, at 8:00 a.m. APPEARANCES: Complainant appeared through its authorized representative, Brent Brooks. Respondent appeared through its authorized representative, Keith Franklin. 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. Respondent is the holder of License No. B-2.083665-C issued by the Registrar of Contractors. 2. This is a commercial matter wherein Complainant performed fire restoration work on the Tortolita Presbyterian Church-Ironwood Hall located at 10710 N. Thornydale Road, Tucson, Arizona, as a subcontractor for Respondent. 3. There was no dispute that Respondent was operating in the capacity of a licensed general contractor for the fire restoration project. 4. During the course of construction, the parties became embroiled in a monetary dispute regarding extra work performed by Complainant that was allegedly approved and authorized by Respondent. 5. The parties were unable to resolve their dispute, and on or about October 17, 2011, Complainant filed a formal complaint against Respondent with the Registrar of Contractors. 6. Complainant alleges that Respondent owes Complainant the sum of $65,839.99 for construction work, completed by Complainant, on the Tortolita Presbyterian Church-Ironwood Hall fire restoration construction project. 7. Complainant’s representative testified that during the course of construction, four (4) of Respondent’s checks, totaling $22,000.00 bounced during the construction project and that the plans for the construction project lacked sufficient detail. 8. Complainant asserted that the applicable fire code required the installation of fire rated windows and doors in the construction project, and that the concrete floor turned out to be in far worse condition than envisioned when the project started. 9. Complainant produced testimony and evidence that the provision of fire rated windows and doors, and the correction of the concrete floor, required additional work to complete the construction project. 10. Complainant stated that the owner of the church requested that extra work, beyond the scope of the agreed upon fire restoration work, be performed by Complainant during the course of the construction project. 11. Complainant asserted that Respondent had been fully informed of the additional costs for the extra construction work, and that Respondent orally agreed to the performance of the requested extra construction work. 12. Respondent denied that it had been informed of the requirement for extra construction work, and denied that Respondent had authorized extra work other than the one signed change order for the construction project. 13. Complainant stopped work and left the construction site before the construction project was fully completed when the parties were unable to resolve their financial dispute. 14. The parties’ written construction agreement for the fire restoration work provides that the agreed upon construction work was to be fully completed by Complainant for the total sum of $80,993.54. 15. There was no dispute that during the course of construction, Respondent signed one change order for the construction project in the amount of $4,564.16. 16. The record in this matter established that section 5 of the parties’ written construction agreement provides that all extra construction work must be “fully agreed upon in writing” prior to the performance of any extra work. 17. Respondent asserted that when Complainant stopped work on the construction project, Respondent was required to fully complete the construction project at extra expense to Respondent and that no additional money is due to Complainant pursuant to the terms of the parties’ written construction agreement. 18. 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 Complainant from Respondent. 19. 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 Complainant. 20. Administrative notice is taken of Respondent’s prior License record as reflected on the Registrar of Contractors’ public website on May 2, 2012. Such prior License record reflects that License No. B-2.083665-C of Vista Restoration Inc was current and in good standing. CONCLUSIONS OF LAW 1. The burden of proof at an administrative hearing falls to the party asserting a claim, right, or entitlement and the standard of proof on all issues in this matter is by a preponderance of the evidence. See A.A.C. R2-19-119. 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 (6th ed. 1990). 3. Complainant failed to sustain its burden of proof to establish that Respondent violated the applicable charged sections of the state’s contracting laws. Therefore, the credible evidence of record did not sufficiently sustain a finding of violations by Respondent of the charged provisions of A.R.S. § 32-1154(A)(11). 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, May 9, 2012.

/s/ M. Douglas Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors

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Office of Administrative Hearings 1400 West Washington, Suite 101 Phoenix, Arizona 85007 (602) 542-9826