ALJDEC

99F-2721-ROC-rhg · Registrar of Contractors · 2000-06-12

STATE OF ARIZONA IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Pursuant to due notice, this cause came on for a formal hearing on June 12, 2000, in Phoenix, Arizona, before Administrative Law Judge Neal H. Jordan, Office of Administrative Hearings.

APPEARANCES For Complainant: Robert Mahoney, Qualifying Party.

For Respondent: Ronald W. Ostlund, President and Qualifying Party.

FINDINGS OF FACT Based upon all the evidence of record, the following findings of fact are determined: This is a case wherein the Complainant alleges that he has performed for Respondent certain plumbing services for the installation and completion of swimming pools. Complainant, either through his own direct testimony or by documentary evidence, could not state to this tribunal with any degree of certainty just exactly how much was owed to Complainant. The documentary evidence submitted by Complainant in support of the alleged amounts due and owing are entitled to little credibility as the invoices, so-called, all bear the same date and do not take into account any amounts that have been admittedly paid on account by Respondent. Further, when Complainant made continual demands for payment to Respondent he could not substantiate the precise amount that was owing and when Respondent refused to make any additional payments until such inexactitude had been cured, Complainant began a campaign involving threatening phone calls, making statements to the effect that he would contact Respondent’s customers to say bills were not being paid, threatened action against Respondent’s bond with the Registrar of Contractors, and by making other inopportune and unprofessional statements that were clearly inappropriate.

CONCLUSIONS OF LAW The Office of Administrative Hearings has jurisdiction over the subject matter and the parties hereto pursuant to A.R.S. §41-1092 - 1092.12 (1998). The Complainant has brought this complaint and accordingly bears the burden of proving by a preponderance of the evidence that the allegations contained therein are true. Culpepper v. State, 187 Ariz. 431, 930 P.2d 508 (Ct. App. 1996); Smith v. Arizona Department of Transportation, 146 Ariz. 430, 706 P.2d 756 (App. 1985), (the standard of proof is that of the “preponderance of evidence.”) The Citation and Complaint alleges that Respondent violated A.R.S. §32-1154 A (7) and (11). The Complainant has failed to sustain the burden of proof necessary to establish by a fair preponderance of the evidence that Respondent has violated any of the provisions of the foregoing cited statute. Complainant’s testimony and evidence failed to provide any supportable basis for making a finding that any amounts are due and owing from Respondent. There may be some amount due but Complainant could not substantiate what that amount is and, clearly, Respondent may have valid counterclaims to offset any such amount, if and when proven. RECOMMENDED ORDER Based on the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that Citation and Complaint issued in Case No. 99-2721 be dismissed.

ENTERED this day, June 12, 2000.

______________________________________ Neal H. Jordan Administrative Law Judge

Original transmitted by mail this ____ day of ____________, 2000, to:

Registrar of Contractors Michael P. Goldwater Attn: Joyce Armijo 800 West Washington, 6th Floor Phoenix, AZ 85007

By ___________________________

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