ALJDEC decisions subject to certification as final

08F-2326-ROC-res · Registrar of Contractors · 2009-09-16

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: September 16, 2009 APPEARANCES: Mike Bunting, Owner, appeared for the Complainant. No one appeared for the Respondent. ADMINISTRATIVE LAW JUDGE: Allen Reed _____________________________________________________________________ Findings of Fact 1. This matter came on for hearing as scheduled.[1] The Complainant was present but the Respondent failed to appear. 2. The Respondent’s Class KB-02 License expired June 30, 2008. It has not been renewed. 3. The Complainant installed low voltage electrical services for the homes constructed by the Respondent. 4. In the latter part of 2007, the Complainant submitted invoices to the Respondent for work performed at various homes constructed by the Respondent. 5. The Respondent failed to pay the all of the invoices. 6. The Complainant filed the Complaint with the Registrar of Contractors on February 8, 2008. 7. The original hearing in this case was vacated because the Respondent had filed a Petition in Bankruptcy. The bankruptcy case has been dismissed. 8. At the instant hearing, the Complainant’s representative submitted three invoices in the total amount of $14,880.00 which the Respondent failed to pay. Conclusions of Law The Citation and Complaint alleges violations of A.R.S. §32- 1154(A)(7), a wrongful act resulting in substantial injury, and (A)(11), failure to pay an amount in excess of $750.00 for material or services related to contracting. 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. 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 Complainant presented substantial evidence in support of the allegations. The Respondent failed to appear and the Complainant’s evidence was not disputed. The violations are proven by a preponderance of the evidence. Recommended Order It is recommended commencing the effective date of the Order issued in this matter that the Respondent’s Class KB-02 License, Number 196631, be Revoked. The Order is effective 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.

Done this day, September 16, 2009

______________________________________ Allen Reed Administrative Law Judge

Original transmitted by mail this ____ day of ____________, 2009, to:

William A. Mundell, Director Registrar of Contractors c/o Legal Department 3838 N. Central Ave. Phoenix, AZ 85012

By ___________________________

----------------------- [1] The case was rescheduled for the instant hearing after the Respondent’s Chapter 11 Bankruptcy Case was dismissed by the United States Bankruptcy Court for the District of Arizona.

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