ALJDEC decisions subject to certification as final

2012A-3321-ROC · Registrar of Contractors · 2012-12-26

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: December 5, 2012 APPEARANCES: Yellow Feather LLC (“Complainant”) appeared through John Masterson, its Qualifying Party. Kinney Construction Services Inc (“Respondent”) appeared through Timothy Kinney, its Qualifying Party. ADMINISTRATIVE LAW JUDGE: Tammy L. Eigenheer _____________________________________________________________________ Evidence and testimony were presented and the following Findings of Fact, Conclusions of Law and Recommended Order are made: FINDINGS OF FACT Respondent is the holder of License No. B-1.145666-C issued by the Registrar of Contractors (“Registrar”). Complainant filed a Complaint against Respondent with the Registrar alleging that Respondent had failed to pay Complainant the sum of $33,555.69 for construction work that Complainant allegedly performed as a subcontractor for Respondent on a STAR School building project located at 145 Leupp Road, Flagstaff, Arizona. 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 Respondent with a possible violation of A.R.S. § 32-1154(A)(11).[1] Mr. Masterson testified that Complainant completed agreed-upon construction work at the STAR School construction project in Flagstaff, Arizona. Mr. Masterson stated that Respondent failed to pay Complainant for its completed construction work and that Respondent owed Complainant the sum of $41,554.31 for Complainant’s completed construction work on the STAR School construction project. Mr. Masterson stated that the $41,554.31 did not include interest or attorney’s fees. Mr. Kinney testified that, after taking into account change orders, back charges, and payments made to Complainant’s subcontractors, Complainant was actually overpaid $14,510.82. Mr. Kinney indicated that back charges were applied because Respondent was required to correct work done by Complainant and complete work that Complainant failed to complete. Mr. Kinney also indicated Complainant’s contract with Respondent did not allow Complainant to subcontract any of the work, which Complainant did. CONCLUSIONS OF LAW 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. 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). 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 Respondent. 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 Respondent and thus, has not sustained the burden of proving that Respondent 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, December 26, 2012.

/s/ Tammy L. Eigenheer 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.

-----------------------

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