ALJDEC

01F-2246-ROC · Registrar of Contractors · 2002-01-17

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: January 17, 2002. APPEARANCES: James Miller appeared on behalf of Complainant. Respondent failed to appear. ADMINISTRATIVE LAW JUDGE: Gregory L. Hanchett _____________________________________________________________________

In this matter, Complainant alleges that Respondent has violated A.R.S. §32-1154(A)(7)(committing a wrongful or fraudulent act that results in substantial harm to another) and A.R.S. §32-1154(A)(11)(failure to pay an amount in excess of $750.00 when due and owing). Respondent failed, without cause, to appear for the hearing. Complainant presented its case. Based on the evidence adduced at the hearing, the following findings of fact, conclusions of law, and recommended decision are made. FINDINGS OF FACT 1. At all times material to this matter, Respondent has been a licensed contractor in Arizona. 2. The evidence adduced at the hearing shows that Respondent purchased several items from Complainant which Respondent used in his capacity as a contractor. . . . The total dollar amount owed to Complainant as a result of the purchases exceeded $5,090.00. 3. This matter was sent to mediation by the Registrar of Contractors. On September 19, 2000, a mediation was successfully concluded between the parties whereby the Respondent agreed to paid $500.00 that day to Complainant and further agreed to pay $500.00 per month plus interest at the rate of 1.5% per month on the remaining balance. Payments were to continue until such time as the entire remaining balance, $4,590.00, was paid off. 4. Respondent complied with the terms of the agreement until June, 2001. Despite the fact, according to Respondent’s own documentation, that over $1,132.87 remained to be paid, no payment was made that month. Indeed, again referring to Respondent’s own documentation, no payment was made thereafter until September 13, 2001, just three days after Complainant requested that this case be reopened due to Respondent’s failure to pay. This payment was for only $242.87, far short of the $500.00 per month amount that was agreed upon by the parties. Respondent made one more payment totaling $150.00 on October 13, 2001. 5. At the time of the filing of the complaint in this matter, again according to Respondent’s records, $1,132.87 remained to be paid on the principal. As of this hearing, $740.00 of principal remain to be paid. 6. At the hearing, Complainant’s representative indicated that Complainant only sought to have the principal balance remaining repaid to it. Complainant is not seeking to have the interest on the outstanding amount repaid, although under the terms of the mediation agreement, Complainant would be entitled to such interest. 7. Complainant’s representative also testified that, in conformity with term 6 of the agreement, after Respondent’s default on the agreement occurred, Complainant sought to reopen the mediation through the entity that originally held the mediation. That entity, however, instructed Complainant to return to the Registrar of Contractors to seek redress for the breach of the mediation agreement. . . . 8. The undersigned has reviewed and considered Respondent’s two year complaint history in arriving at the recommended disposition in this case. CONCLUSIONS OF LAW 1. The complainant has the burden of proof, and the standard of proof on all issues is by a preponderance of the evidence. Culpepper v. State, 187 Ariz. 431, 930 P.2d 508 (App. 1996). 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). It "is evidence which is of greater weight or more convincing than the evidence which is offered in opposition to it; that is, evidence which as a whole shows that the fact sought to be proved is more probable than not." Black's Law Dictionary, 1182 (6th ed. 1990). 2. Arizona Revised Statute § 32-1154(A) provides in pertinent part: A. The holder of a license or any person listed on a license pursuant to this chapter shall not commit any of the following acts or omissions: * * * (7). The doing of a wrongful or fraudulent act by the licensee as a contractor resulting in another person being substantially injured. * * * (11). Failure by a licensee . . . to pay monies in excess of seven hundred fifty dollars when due for materials or services rendered in connection with his operations as a contractor when he has the capacity to pay. . . 3. The evidence above demonstrates that Respondent has violated A.R.S. § 32-1154(A)(7). Respondent’s failure to pay on the agreement is a wrongful act in violation of the statute and has resulted in substantial harm, in this case the loss of over $740.00. 4. The evidence above also demonstrates Respondent has violated A.R.S. § 32-1154 (A)(11). The debt which Respondent has failed to pay was for materials provided to Respondent for use in his capacity as a contractor. RECOMENDED DECISION Based on the foregoing, it is recommended that upon the effective date of the final order entered in this matter the Director of the Registrar of Contractors suspend Respondent’s license until such time as Respondent pays or tenders to Complainant the amount of $740.00. It is further recommended that if written proof is provided to the Registrar, on or before the effective date of the final order entered in this matter, that Respondent has paid or tendered to Complainant the amount of $740.00, then the citation and the complaint issued in this matter should be closed.

Done this day, January 17, 2002

______________________________________ Gregory L. Hanchett Administrative Law Judge

Original transmitted by mail this ____ day of ____________, 2002 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