ALJDEC

00F-2509-ROC · Registrar of Contractors · 2000-08-09

STATE OF ARIZONA IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Pursuant to due notice, this cause came on for a formal hearing on August 9, 2000, in Phoenix, Arizona, before Administrative Law Judge Neal H. Jordan, Office of Administrative Hearings.

APPEARANCES For Complainant: Lynell Nowlin, Appearing pro se.

For Respondent: Default in Attendance at the heaing.

FINDINGS OF FACT Based upon all the evidence of record, the following findings of fact are determined: Due notice of the hearing scheduled in this matter was mailed to all parties of record on June 27, 2000. Despite such notice having been mailed to Respondent and the hearing being delayed for 15 minutes to permit a late arrival, Respondent has failed and neglected to appear and defend. On May 18, 1999, Complainant signed a contract with Respondent for the construction of specified improvements to an existing residence. At that time Complainant delivered to Respondent a deposit in the amount of $10,791.77, which deposit was received by Respondent. Notwithstanding an executed contract and the delivery of a substantial deposit towards the work to be performed, Respondent has, without valid excuse or reason, failed and neglected to undertake the work required by the contract. The answer filed by Respondent in this matter claims that no party was injured because the job never started. This is an admission that Respondent never performed any work under the contract. The Complainant has made numerous demands for the return of the deposit but Respondent has refused to do so. This refusal in light of the failure to perform any work under the contract is a matter to be considered in aggravation of any disciplinary measures to be imposed in this case.

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 burden of proof, unless otherwise provided by law, is on the party asserting a claim, right, or entitlement in a contested case or appealable agency action. A.A.C. R2-19-119(B)((1); See also Utah Construction Company v. Berg, 68 Ariz. 285, 205 P.2d 367 (App. 1949). The standard of proof in such matters is that of the preponderance of evidence. A.A.C. R2- 19-119(A); See also Shelby School v. Arizona State Board of Education, 192 Ariz. 156, 962 P.2d 230 (App. 1998); Culpepper v. State, 187 Ariz. 431, 930 P.2d 508 (App. 1996). The Citation and Complaint alleges that Respondent: (a) violated A.R.S. §32-1154 A (7), (23), and (3), namely Rule R4-9-108. These provisions provide for disciplinary action to be taken against a licensee for: 4) Abandonment of a contract or refusal to perform after submitting a bid on work without legal excuse for the abandonment or refusal.

5) The doing of a wrongful or fraudulent act by the licensee as a contractor resulting in another person being substantially injured.

By a preponderance of the evidence it is established that Respondent contracted with Complainant to perform specified construction work on Complainant’s residence and that Respondent after accepting and receiving a substantial deposit for the performance of such work has not only abandoned and refused to perform any of such work, but has also refused and neglected to return the deposit after proper demand therefore.

The issues and evidence pertaining to this case are egregious and properly to be considered when imposing disciplinary sanctions against Respondent’s license.

RECOMMENDED ORDER In view of the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Registrar of Contractors revoke the Class B, License No. 143481, issued to Respondent upon the effective date of the Order.

ENTERED this day, August 9, 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