ALJDEC decisions subject to certification as final

07F-L0246-ROC · Registrar of Contractors · 2007-08-29

STATE OF ARIZONA IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: August 15, 2007 APPEARANCES: Complainant: Joshua M. Pitts appeared, pro per. Respondent: Respondent failed to appear either by authorized representative or counsel. ADMINISTRATIVE LAW JUDGE: Brian E. Smith _____________________________________________________________________ Evidence and testimony were presented and, based on the entire record in this matter, the following Findings of Fact, Conclusions of Law and Recommended Order are made:

FINDINGS OF FACT 1. This matter convened for hearing at the time, date and place set forth in the Registrar of Contractors’ Notice of Hearing dated June 27, 2007. 2. Complainant Joshua M. Pitts (“Complainant”) is an individual who performed concrete work for Respondent on a residence located at 1393 Arroyo Lane, Lake Havasu City, Arizona (“premises/project”). 3. Respondent John W. Paulson Custom Builders, Inc. is a corporation which holds Arizona Contractor’s License No. 197770, Class B (General Residential) issued by the Registrar of Contractors (“ROC”) on July 4, 2004. John Wallace Paulson is a corporate officer and the qualifying party for the license. A review of the ROC licensing database indicates that this license was cancelled November 14, 2006 and revoked May 17, 2007 (L07-0117) and August 3, 2007 (L07-0085). 4. Complainant filed a complaint with the Registrar of Contractors on November 17, 2006 wherein he alleged he was owed $2,000.00 for work done on a “concrete slab – form set up and inspection, finished concrete” on the project. 5. Based on Complainant’s complaint, the Registrar of Contractors issued a CITATION AND COMPLAINT in Case No. L07-0246 charging Respondent with possible violations of A.R.S. §32-1154A 7 and 11. 6. On April 11, 2007, John W. Paulson, on behalf of Respondent, filed an answer wherein he asserted, inter alia, that he “had no choice but to cancel my license and close my business on Nov. 14, 2006 due to detrimental action by others who ran the day to day operations of the company.” 7. At the hearing, Complainant testified and submitted Exhibits C-1 through C-7 which were marked, admitted and considered. 8. Respondent failed to appear either by authorized representative or counsel. 9. On the testimony and evidence of record, the following salient facts are important to note: a. On November 10, 2006, Complainant, as a laborer, performed concrete work on a casita located on the project for a total of $2,000.00. (Exhibits C-3 and C-7) b. By company check number 4110 dated November 17, 2006, Respondent paid Complainant $461.75 toward the amount due for work on the casita. (Exhibit C-2) c. By a letter dated November 17, 2007 which accompanied the above- referenced check, Respondent advised Complainant that it was unable to pay him the balance due for the concrete work performed. (Exhibit C-1) d. Complainant testified that the homeowner paid Respondent for the subject concrete work done on the project. e. Respondent owes Complainant $1,538.25 for work done on the project. …

APPLICABLE LAW The CITATION AND COMPLAINT issued by the Registrar of Contractors charged Respondent with possible violations of A.R.S. § 32-1154A (7) and (11). Those statutory sections require that the holder of a license or person listed on the license shall not commit the following:

7. The doing of a wrongful act by the licensee as a contractor resulting in another legal excuse for the abandonment or refusal.

11. Failure by a licensee or agent or official of 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 or, if he lacks the capacity to pay, when he has received sufficient monies as payment for the particular construction work project or operation for which the services or materials were rendered or purchased.

CONCLUSIONS OF LAW 1. The Registrar of Contractors has jurisdiction over this matter, pursuant to A.R.S. § 32-1101, et seq., which authorizes the Registrar to impose disciplinary sanctions against licenses for violations of A.R.S. § 32-1154. 2. To warrant such sanctions by the Registrar, Complainant must demonstrate by a preponderance of the evidence that Respondent violated any one, or more, of the statutory sections cited. 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.” In re Arnold and Baker Farms, 177 B.R. 648 (9th Cir. BAP (Ariz.) 1994). See also, Culpepper v. State of Arizona, 187 Ariz. 43, 930 P.2d 508 (App. 1996). 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 (Rev. 6th ed. 1990). 3. The undersigned determines and concludes that Respondent’s refusal and/or inability to remit payment to Complainant of the $1,538.25 balance owed for concrete work performed on the project constituted a violation of A.R.S. §32-1154A (11). 4. The foregoing violation is deemed by this tribunal to have been wrongful and has resulted in the substantial injury to Complainant. Therefor, a violation of A.R.S. §32-1154A (7) has been proven. 5. it is further determined and concluded that the prior two disciplinary revocations of Respondent’s license as referenced in Finding of Fact 3 and Respondent’s failure to appear at the instant hearing shall serve as factors in aggravation in this matter.

RECOMMENDED ORDER On the basis of the foregoing, IT IS RECOMMENDED that the Class B license of Respondent be revoked.[1] Done this day, August 29, 2007.

_______________________ Brian E. Smith Administrative Law Judge

Original transmitted by mail this ____ day of ____________, 2007, to:

Registrar of Contractors Fidelis V. Garcia Legal Department 800 West Washington, 6th Floor Phoenix, AZ 85007

By ________________________ ----------------------- [1] In the event of certification of the Administrative Law Judge Decision by the Director of the Office of Administrative Hearings, the effective date of the Order in this matter will be forty (40) days from the date of that certification.

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