ALJDEC decisions subject to certification as final

2016A-1762-ROC · Registrar of Contractors · 2016-09-28

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Jerry Tuccino,

COMPLAINANT,

v.

Hurricane Fence Co,

License No: 303821, 076196 & 077395

RESPONDENT.

No. 2016A-1762-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: September 8, 2016

APPEARANCES: Complainant Jerry Tuccino appeared on his own behalf. Kirby Reinhardt, Owner, appeared on behalf of Respondent Hurricane Fence Co.

ADMINISTRATIVE LAW JUDGE: Tammy L. Eigenheer

_____________________________________________________________________

FINDINGS OF FACT

Hurricane Fence Co. (Respondent) is the holder of License Nos. 303821, 076196, and 077395 issued by the Registrar of Contractors (Registrar).

On or about May 23, 2016, Jerry Tuccino (Complainant) filed a Complaint against Respondent with the Registrar alleging that Respondent had failed to pay Complainant the sum of $1,000.00 for scaffolding.

The parties were unable to resolve their differences, and Complainant requested an administrative hearing. The Registrar then issued a Citation for Alleged Violation of A.R.S. § 32-1154(A)(10).

Mr. Tuccino testified that the total due to Complainant was $1,000.00. Mr. Tuccino stated that when someone went to pick up the scaffolding for him and to receive final payment, all the scaffolding pieces were not there. The representative did not accept the final payment or take any of the scaffolding at that time. Mr. Tuccino was unable to give any details regarding what pieces of scaffolding were not present and admitted he had never gone to inspect the scaffolding to determine what was missing.

Mr. Reinhardt testified that one of Respondent’s employees negotiated the contract with Mr. Tuccino. The employee paid Mr. Tuccino $1,700.00 at delivery with $1,000.00 due upon return. Mr. Reinhardt stated that he completed the project on April 9, 2106, and asked to have Mr. Tuccino pick up the scaffolding. The representative came to the worksite, but said all the pieces were not there. Respondent had the check for $1,000.00 ready on that day, but the representative refused the check and refused to take the scaffolding that was present. Respondent moved the scaffolding to its place of business and the scaffolding is currently sitting in its yard. Mr. Reinhardt testified that he is unfamiliar with the terminology used in and did not know what parts of the scaffolding were on site and what parts may have been missing. Mr. Reinhardt acknowledged that some pieces may have been taken in error by a different subcontractor when it dismantled its scaffolding to remove from the worksite. Mr. Reinhardt asked that Complainant come inspect the scaffolding to let him know exactly what was missing. Mr. Reinhardt said that he would contact the other subcontractor to determine if it had improperly taken some of Complainant’s pieces, but he was unable to do so without knowing what was missing.

Respondent did not assert that it lacked the capacity to pay the amount Complainant asserted was due.

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).

A.R.S. § 32-1154(A)(10) includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license,

[f]ailure 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.

The evidence established that Respondent owed a total of $1,000.00 for the scaffolding and that Respondent offered payment of the $1,000.00 due, but Complainant refused to accept the payment. Complainant failed to establish if pieces of scaffolding were missing and if so, specifically what was missing.

Therefore, Complainant failed to establish that Respondent violated A.R.S. § 32-1154(A)(10) by failing to pay Complainant $1,000.00 for services or materials rendered in connection with Respondent’s contracting business.

RECOMMENDed order

Based on the foregoing, it is recommended that the Registrar dismiss the complaint in Case No. 2016-1762.

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 28, 2016.

/s/ Tammy L. Eigenheer

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors