ALJDEC

01F-2674-ROC · Registrar of Contractors · 2001-10-25

STATE OF ARIZONA IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: October 25, 2001 APPEARANCES: Complainant : Joe Giangarra, General Manager, and Dawn Gilbert, Office Manager, appeared for Industrial Personnel. Respondent : No representative appeared for Apollo General Contracting, Inc.[1] ADMINISTRATIVE LAW JUDGE: Gary B. Strickland _____________________________________________________________________

Evidence and testimony having been received at the hearing and based upon the entire record, the undersigned Administrative Law Judge issues the following Findings of Fact, Conclusions of Law and Recommended Order.

FINDINGS OF FACT 1. Due and proper notice of the hearing was mailed to each party of record. Although provided additional time to accommodate a possible late arrival, Respondent failed to appear. 2. Respondent is an Arizona Corporation holding a Class B-01 (General Contracting) license through the Registrar of Contractors. 3. On or about November 2000, Complainant and Respondent entered into a verbal agreement whereby Complainant agreed to provide Respondent with day laborer services in exchange for Respondent’s agreement to pay for those services at the then going rate. Complainant continued to provide such services into April 2001 until it was apparent that Respondent contractor was unable or unwilling to pay the balance that it then owed. 4. The evidence is uncontroverted that Respondent has failed to pay fully the value of the services that Complainant has provided to Respondent. 5. The evidence is further uncontroverted that Respondent owes Complainant the sum of $1,323. as the fair value of the work performed. 6. There is no evidence of record that suggests that Complainant failed properly to perform as agreed or that Complainant has breached its obligations under its agreement with Respondent . 7. The evidence establishes that Respondent has withheld payment from Complainant for unsubstantiated and unjustifiable reasons. 8. At the time of the filing of this complaint, May 11, 2001, Respondent owed $4,906.21 on this obligation. That total has been reduced to $1,323., as evidenced by Complainant’s submission of billing statements and service records.[2] 9. On July 18, 2001, Respondent’s Controller wrote to the Registrar’s Investigator admitting its delinquency in the payment of its debt to Industrial Personnel, Inc. and manifesting its intent to make good the obligation until such time as the balance should be paid in full. Complainant acknowledges that Apollo General Contracting, Inc. has been making payments at a rate approximating $300. per month. However, Complainant’s representatives deny ever having agreed to a satisfaction of this bill through a payment plan. 10. No evidence was presented on behalf of Respondent and no evidence is contained in the record indicative that Apollo General Contracting lacks capacity to pay this obligation. 11. The weight and sufficiency of the evidence leads to the conclusion that Respondent currently owes an obligation to Complainant in excess of $750. and that Respondent contractor does not lack capacity to pay this bill, all in violation of the prompt pay requirements of Title 32.

CONCLUSIONS OF LAW 1. The Office of Administrative Hearings has jurisdiction over the subject matter and the parties hereto pursuant to A.R.S ( 41-1092. 2. The burden of proof generally at an administrative hearing falls to the party asserting a claim, right or entitlement or seeking to impose a penalty.[3] Further, the standard of proof is that of the “preponderance of the evidence”.[4] Proof by a preponderance means that the evidence is sufficient to persuade the finder of fact that the proposition is “…more likely true than not.”[5] The evidence taken as a whole must convince the decision maker that the party who bears the overall burden of persuasion, in this case the Complainant, is more probably correct on the issue(s) in dispute. Observing these standards, Complainant has borne its burden of demonstration, by a preponderance of the evidence, that Respondent has violated a provision of Title 32 requiring prompt payment of contracting obligations absent an agreement otherwise. 3. The weight and sufficiency of the record establishes, by a preponderance of the evidence, that Respondent has failed to pay that which Respondent owes to Complainant for services provided by Complainant in accordance with its manifest agreement with Complainant. The evidence further has established that Respondent owes a balance on the agreement totaling $1,323., in violation of A.R.S ( 32-1154 (A) (11). 4. The weight and sufficiency of the evidence further establishes that Respondent’s failure to pay the sum due and owing constitutes a wrongful act in violation of A.R.S ( 32-1154 (A) (7).

RECOMMENDED ORDER In view of the foregoing, it is recommended that Respondent’s Class B- license be suspended commencing the effective date of the Registrar’s order until the Registrar of Contractors receives credible written proof that Respondent has paid or tendered the sum of $1,323. to Complainant. It is further recommended that should Respondent pay or tender the identified sum due and owing on or before the effective date of the Registrar’s Order, the recommended indefinite license suspension not take place. Submitted this 5th day of November, 2001. OFFICE OF ADMINISTRATIVE HEARINGS

______________________________________ Gary B. Strickland Administrative Law Judge

Original transmitted by mail this 5th day of November, 2001, to:

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

By ___________________________

----------------------- [1]Respondent was afforded an additional 20 minutes within which to make a late appearance in the event of unforeseen circumstance. [2] Hearing Exhibit 1. [3] Culpepper v. Arizona Board of Nursing, 187 Ariz. 431, 930 P.2d 508 (App. 1997); See also Ariz. Admin. Code R2-19-119 (B). [4] Smith v. Arizona Department of Transportation, 146 Ariz. 430, 706 P.2d 756 (App. 1985); See also Ariz. Admin. Code R2-19-119 (A). [5] In re Arnold and Baker Farms, 177 B.R. 648, 654 (9th Cir. BAP (Ariz.) 1994). See also, J. Livermore, R. Bartels, & A. Hameroff, LAW OF EVIDENCE ( 301.1(4th ed. 2000) (One party bears the overall burden of persuasion on each fact material to the party’s claims and defenses. Further, the party with the burden of persuasion on a particular fact is required to satisfy the burden of production of enough qualitative evidence sufficient to support a finding of the existence of the fact, following a reasonable person standard.)

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

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