ALJDEC decisions subject to certification as final

2012A-1336-ROC · Registrar of Contractors · 2012-09-27

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: August 16, 2012, at 8:15 a.m. The record in this matter was held open until September 15, 2012, to allow Respondent sufficient time to file written objections to the exhibits filed by Complainant, but not copied to Respondent, and to provide sufficient time for Complainant to file written objections to the exhibits filed by Respondent, but not copied to Complainant. APPEARANCES: K V S A Framing LLC (hereinafter “Complainant”) appeared through its authorized representative, Joaquin Garcia Sanchez. Bigford Enterprises Inc. (hereinafter “Bigford”) appeared telephonically through its authorized representative, David Glen Bigford. 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. Bigford is the holder of License No. L-7.276781-C issued by the Registrar of Contractors. 2. Complainant filed a complaint against Bigford with the Registrar of Contractors alleging that Bigford had failed to pay Complainant the sum of $35,275.04 for construction work that Complainant allegedly performed as a subcontractor for Bigford on an off-campus student housing project located at 1000 E. Sawmill, Flagstaff, Arizona. 3. The parties were unable to resolve their differences and Complainant requested an administrative hearing. The Registrar of Contractors then issued a formal Citation and Complaint charging Bigford with a possible violation of A.R.S. § 32-1154(A)(11).[1] 4. Joaquin Garcia Sanchez (hereinafter “Mr. Sanchez”) testified that Complainant completed agreed-upon construction work at a student housing construction project in Flagstaff, Arizona. Mr. Sanchez stated that Bigford failed to pay Complainant for its completed construction work. Mr. Sanchez testified that Bigford owed Complainant the sum of $35,275.04 for Complainant’s completed construction work on the student housing construction project. Mr. Sanchez stated that the $35,275.04 did not include interest or attorney’s fees.[2] 5. Mr. Sanchez testified that Complainant was unable to fully pay its employees allegedly because Bigford had not fully paid Complainant for its completed construction work.[3] 6. Joshua Bigford (hereinafter “Mr. J. Bigford”) testified that Complainant would not complete its work. Mr. J. Bigford stated that Bigford informed Complainant that it would have to complete its work to be fully paid and that Complainant abandoned the Flagstaff construction project. Mr. J. Bigford testified that Bigford had paid Complainant for completed and partially completed construction work and that Complainant had failed to pay its employees. Mr. J. Bigford stated that Complainant’s employees then approached Bigford for payment for their back wages. Mr. J. Bigford stated that Bigford then paid the employees directly for work for which Bigford had already paid Complainant.[4] 7. David Glen Bigford (hereinafter “Mr. D. Bigford”) testified that Complainant did not complete its work despite repeated requests that it do so. Mr. D. Bigford stated that Bigford finally informed Complainant that there would be no more money paid to Complainant until Complainant fully completed its construction work on the student housing project. Mr. D. Bigford testified that he also informed Complainant that future payments would be made jointly to Complainant and Complainant’s employees. Mr. D. Bigford stated that Complainant then abandoned the construction project and, at the general contractor’s insistence, Bigford paid Complainant’s employees directly for their back wages for the construction project.[5] 8. Mr. D. Bigford testified that Bigford did not have a written construction agreement with Complainant. Mr. D. Bigford stated that in this type of commercial work, it is not standard practice to have a written contract with subcontractors and that it is usually a “hand- shake” deal. Mr. D. Bigford acknowledged that Bigford had a written agreement with the general contactor for the construction project.[6] 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 these matters is by a preponderance of the evidence. See A.A.C. R2-19-119. 2. A preponderance of the evidence is “such proof as convinces the trier of fact that the contention is more probably true than not.” Morris K. Udall, Arizona Law of Evidence § 5 (1960). 3. The credible testimony and evidence of record adequately demonstrated a good-faith dispute between the parties regarding what, if any, amount of money is due and owing to Complainant from Bigford. This Tribunal concludes that Complainant failed to sustain the requisite burden of proving the existence of a valid liquidated debt properly due and owing by Bigford and thus, has not sustained the burden of proving that Bigford violated the charged provision 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, September 27, 2012.

/s/ M. Douglas Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors

----------------------- [1] A.R.S. § 32-1154(A)(11) includes among the grounds for disciplinary action against a contractor’s license, failure by a licensee or agent or official of a licensee to pay monies in excess of seven hundred fifty dollars when due for materials or services rendered in connection with the licensee's operations as a contractor when the licensee has the capacity to pay or, if the licensee lacks the capacity to pay, when the licensee has received sufficient monies as payment for the particular construction work project or operation for which the services or materials were rendered or purchased. [2] 8/17/12 Hearing Record (hereinafter “H.R.”) at 8:18-10:48. [3] H.R. at 12:24-15:08. [4] H.R. at 17:12-20:19. [5] H.R. at 22:20-25:36. [6] H.R. at 25:00-26:29.

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