ALJDEC

02F-A0234-ROC · Registrar of Contractors · 2002-02-28

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

On February 28, 2002, a disciplinary hearing was held to determine if the Respondent’s license should be disciplined pursuant to A.R.S. §32- 1154(A) & (B). Mr. Rodney Ordway (“Complainant”) appeared on his own behalf. Mr. Joseph Burton III represented The Back East Touch, LLC (“Respondent”). Documentary evidence and testimony were presented. Based upon a review of the entire record, the undersigned Administrative Law Judge makes the following Findings of Fact, Conclusions of Law and Recommended Order.

FINDINGS OF FACT

1. On November 13, 2001, the Complainant filed a Complaint with the Registrar of Contractors (“ROC”) complaining that the Respondent failed to pay him $4,050.00.

2. The Complainant was employed for 18 months as the Respondent’s project manager. The Complainant testified that the Respondent failed to pay him $4,050.00 for the time period April 19, 2001 through October 25, 2001. See Complainant’s Exhibit 1 (calculations). The Complainant testified that the Respondent’s failure to pay the $4,050.00 has caused great hardship to his family.

3. Mr. Joseph Burton III is the Respondent’s president. Mr. Burton conceded that the Respondent owes the Complainant $4,050.00 for wages. Mr. Burton testified that he expects to pay the Complainant the entire $4,050.00 within a week.

4. Notice is taken of the ROC’s licensing records. These records show that the Respondent’s license was suspended on January 13, 2002 for lack of bond.

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. The undersigned Administrative Law Judge concludes that the preponderance of the evidence shows that the Respondent has violated A.R.S. §32-1154(A)(7). The Respondent’s failure to pay the Complainant is a wrongful act that has caused substantial hardship for the Complainant and his family.

3. The undersigned Administrative Law Judge concludes that the preponderance of the evidence shows that the Respondent has violated A.R.S. §32-1154(A)(11). The Respondent failed to pay the Complainant $4,050.00 for services rendered by the Complainant in connection with the Respondent’s operations as a contractor.

4. The undersigned Administrative Law Judge concludes that grounds exist to revoke or suspend the Respondent’s Class KB-02 license pursuant to A.R.S. §32-1154(A)[i] & (B). The undersigned Administrative Law Judge further concludes that grounds exist to increase the Respondent’s surety bond or cash deposit pursuant to A.R.S. §32-1154(B). RECOMMENDED ORDER

In view of the foregoing, it is recommended that the Respondent’s Class KB-02 license shall be revoked on the effective date of the Order entered in this matter. It is further recommended that if the Respondent: (1) pays $4,050.00 to the Complainant and (2) corrects its current “Lack of Bond” issue with the ROC, on or before the effective date of the Order entered in this matter, then the aforementioned license revocation shall not take place; but instead, the Respondent’s Class KB-02 license shall be placed on active suspension for a period of two (2) days, followed immediately by a period of 100 days disciplinary probation. This additional disciplinary penalty shall commence, if at all, on the effective date of the Order entered in this matter. It is further recommended, in addition to the above provided penalties, if any, that any continuation or restoration of Respondent’s contracting rights, whether or not probationary, shall be subject to a condition that the Respondent first post an additional surety bond, cash deposit or alternative deposit for a period of twenty-four (24) months, including future renewal periods, in the amount of $1,000.00, such bond or deposit to be for the sole benefit of persons injured as defined in A.R.S. § 32-1131(3) and to be in addition to the required surety bond, cash deposit or recovery fund participation set forth in A.R.S. § 32-1152(D). Cash or alternative additional deposits, if utilized, shall be returned only after the expiration of an additional two year period following the above-provided twenty-four (24) month period and only if no claims are then pending.

Done this day, March 7, 2002.

______________________________________ Casey J. Newcomb Administrative Law Judge

Original transmitted by mail this ____ day of March, 2002, to:

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

By ___________________________

----------------------- [i] The undersigned Administrative Law Judge makes no conclusions on the other violations alleged in the Citation and Complaint.

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