ALJDEC decisions subject to certification as final

07F-2640-ROC · Registrar of Contractors · 2008-09-10

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: August 5, 2008 APPEARANCES: Robert Rutilla, Esq. appeared for the Complainant. No one appeared for the Respondent. ADMINISTRATIVE LAW JUDGE: Allen Reed _____________________________________________________________________ This matter came on for hearing as scheduled. The Complainant was present through counsel. The Respondent failed to appear and the reason for the non appearance is unknown. The record of the hearing remained open until September 9, 2008, to allow the parties to address the address the scope of the “Assumption” by the current Respondent, of the liabilities of Coebilt Homes, Inc. under License No. 184848. Complainant’s counsel timely submitted a supplemental memorandum. Findings of Fact 1. On May 8, 2007, the Complainant, a supplier and installer of home appliances, filed its Complaint against Coebilt Inc. (Coebilt), License No. 184848, with the Registrar of Contractors (ROC). The Complaint alleged amounts due and owing to the Complainant in the amount of $50,740.00. 2. On June 26, 2007, the ROC issued a Class KB-02 license No. 232614, to the instant Respondent Coebilt LLC. At that time Gregory Coe, Managing Partner (Member) of the Coebilt LLC, signed an Assumption of “…all complaints, receipt of citations, filing of answers, and appearing at hearings on all present and future charges and complaints against Coebilt Inc….” License No. 184848. 3. At the hearing, the Complainant’s credit manager, Donna Lake, testified credibly and documentary evidence established that the Respondent’s account with Complainant is $50,740.00 in arrears for material and labor provided by the Complainant for the Respondent’s operations as a contractor. Conclusions of Law The Citation and Complaint alleges violations of A.R.S. §32- 1154(A)(7), a wrongful act with substantial injury and (A)(11), failure to pay monies in excess of $750.00 when due for materials or services. 1. The Complainant has the burden of proof, and the standard of proof on all issues is by a preponderance of the evidence. Vazzano v. Superior Court, 74 Ariz. 369, 249 P. 2d 837 (Ariz. 1952); 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 evidence in an administrative hearing must be “substantial, reliable and probative” (A.R.S. §41-1092.07(F)(1)). This means the Complainant has the affirmative responsibility to present sufficient competent evidence to meet the preponderance standard. The less demanding evidentiary standard in the administrative hearing does not mean that any type of evidence is entitled to serious consideration or significant weight. 3. “Substantial evidence is evidence possessing something of substance and relevant consequence and which furnishes substantial basis of fact from which issues tendered can be reasonably resolved.” Black’s Law Dictionary, Special Deluxe Fifth Edition, (St. Paul Minn.: West Publishing Co., 1979) p. 1281, citing State v. Green, 218 Kan. 438, 544 P. 2d 356, 362. 4. The Respondent’s failure to appear for the hearing is unexplained and no evidence has been presented to rebut the Complainant’s evidence. In addition, counsel for the Respondent filed the Answer to the Citation and Complaint but did not appear for the hearing. 5. Based on the substantial evidence presented at the hearing, the violations of A.R.S. 32-1154(A)(7) and (A)(11) are clearly established. 6. The “Assumption” executed by the Respondent on June 26, 2007, in conjunction with receiving the license at issue in this case, establishes the Respondent’s liability to the Complainant. 7. Although it appears unlikely that the Respondent will pay any of the monies owed to the Complainant, the following recommendation for conditional revocation is submitted. Recommended Order It is recommended commencing the effective date of the Order in this case[1] that the Class KB-02. license no. 232614, of the Respondent, shall be revoked unless the Respondent pays or tenders payment to the Complainant in the amount of Fifty Thousand-Seven Hundred and Forty ($50,740.00) Dollars.

Done this day, September 10, 2008

______________________________________ Allen Reed Administrative Law Judge

Original transmitted by mail this ____ day of ____________, 2008, to:

Fidelis V. Garcia, Director Registrar of Contractors 3838 N. Central Ave. Phoenix, AZ 85012

By ___________________________

----------------------- [1] Forty (40) days from the date of the Order or from the date of certification if certified by the Director of the Office of Administrative Hearings.

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