ALJDEC decisions subject to certification as final

2011A-6533-ROC · Registrar of Contractors · 2012-05-08

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: April 19, 2012, at 8:00 a.m. APPEARANCES: Complainant appeared through its authorized representative, Deborah Meyer. Respondent appeared through its attorney, Corey B. Larson, Esq., Waterfall, Economidis, Caldwell, Hanshaw, & Villamana, P.C. 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-1.085565-C issued by the Registrar of Contractors. 2. There was no dispute that Complainant was a subcontractor for Respondent on a commercial construction project at the H&M store at 5870 E. Broadway Blvd., #230, Tucson, Arizona. 3. Complainant filed a formal complaint against Respondent with the Registrar of Contractors on November 17, 2011, alleging that Respondent had failed to pay Complainant the sum of $96, 641.64 for construction work that Complainant performed for Respondent on the commercial construction project at issue. 4. Respondent declined to pay Complainant on the alleged basis that Complainant’s construction work on the H&M store failed to comply with applicable workmanship and industry standards, and was rejected by both the owner of the store and the owner of the shopping mall where the H&M store was located. 5. Respondent produced credible testimony and evidence that the metal work performed by Complainant had the wrong sheen, was dented and warped, was not properly fitted, was missing required fasteners, had irregular metal cuts, displayed unacceptable gapping, and was the wrong metal gauge. 6. There was no dispute that the owner of the H&M store, as well as the owner of the shopping mall where the H&M store is located, rejected Complainant’s metal work and required Respondent to remove and replace the unsatisfactory metal work before the H&M store could be opened. 7. Complainant asserted that the unacceptable metal work on the H&M store was due to matters beyond its control and that Complainant should still be paid for its completed construction work. 8. Respondent asserted that the cost of removing and replacing Complainant’s unacceptable metal work on the H&M store was in excess of the amount of money claimed by Complainant as being due and owing. 9. The credible testimony and evidence of record adequately demonstrated a dispute between the parties regarding what, if any, amount of money is due and owing to Complainant from Respondent. 10. 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 is owed to Complainant. 11. The parties can resolve their good faith money dispute in a civil court of competent jurisdiction. 12. Undisputed credible evidence established that Respondent has been operating under the name Westwood Contractors Inc. 13. Undisputed credible evidence established that the name on Respondent’s License No. B-1.085565-C is Texas Westwood Contractors Inc. 14. Credible evidence supports a finding that Respondent was operating as a contractor under a name other than as set forth upon its license. 15. Administrative notice is taken of Respondent’s prior License record as reflected on the Registrar of Contractors’ public website on April 26, 2012. Such prior License record reflects that License No. B-1.085565- C of Texas Westwood Contractors Inc. is 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 the existence of a valid liquidated debt properly due and owing by Respondent and thus, has not sustained the burden of proving that 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). 4. Credible evidence of record supported findings which establish a violation by Respondent of the charged provisions of A.R.S. § 32- 1154(A)(15) (acting in the capacity of a contractor under any license issued under this chapter in a name other than as set forth upon the license). RECOMMENDED ORDER In view of the foregoing, it is recommended that commencing on the effective date of the Registrar’s Order, License No. B-1.085565-C of Texas Westwood Contractors Inc be suspended until the Registrar of Contractors receives, and accepts, written proof that Respondent has brought its business practices, including all paperwork, into full compliance with the provisions of A.R.S. § 32-1154(A)(15). It is further recommended that if the Respondent properly accomplishes the above described corrective action, on or before the effective date of this Order, then the above provided 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, May 8, 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