ALJDEC decisions subject to certification as final

2008A-114512511-ROC · Registrar of Contractors · 2011-07-11

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: July 11, 2011, at 8:00 a.m. APPEARANCES: The Complainants appeared through Gilbert Maken. The Respondent appeared through its authorized representative, Moses Tyler Jr. ADMINISTRATIVE LAW JUDGE: M. Douglas

This matter came on for a Compliance Hearing to determine whether the Respondent has fully complied with the terms of the July 30, 2009, Order of the Registrar. Evidence and testimony were presented and the following Findings of Fact, Conclusions of Law and Recommended Order on Compliance Hearing are made: FINDINGS OF FACT 1. The Complainant provided testimony that the Respondent had failed to comply with the terms of the July 30, 2009 Order of the Registrar. 2. The Respondent asserted that it had fully complied with the terms of the prior Order of the Registrar. 3. Credible testimony established that the Respondent knowingly aided and abetted an unlicensed entity or person to perform concrete work at the Complainants’ residence. 4. Credible testimony and evidence established that the Respondent knowingly aided and abetted an unlicensed entity or person to perform plumbing work at the Complainants’ residence. 5. Credible testimony and evidence established that the Respondent knowingly aided and abetted an unlicensed entity or person to perform HVAC work at the Complainants’ residence. 6. Credible testimony and evidence established that the Respondent failed to produce documentation that all workers on the Complainants’ construction project were either properly licensed subcontractors or proper employees. 7. The assigned Agency Inspector testified that he had reviewed the matter and found that the Respondent had failed to fully comply with the terms of the July 30, 2009 Order of the Registrar. 8. The credible evidence of record established that the Respondent has failed to fully comply with the terms of the July 30, 2009 Order of the Registrar. 9. Credible evidence established that the Respondent’s actions over a prolonged period of time are not indicative of a good faith desire to resolve this matter by complying with the terms and conditions of July 30, 2009 Order of the Registrar of Contractors. 10. Credible evidence of record established that the Respondent has repeatedly failed to properly accomplish compliance with the terms July 30, 20009 Order of the Registrar and that the Respondent’s efforts appear to have been directed to delay and excuse, rather than to achieve, compliance with the July 30, 2009 Order of the Registrar. 11. The Respondent’s KB-1 (No. 226186) License was revoked by the Registrar on March 18, 2011. CONCLUSIONS OF LAW 1. Once the Registrar issues an Order concluding that the Respondent is in violation of A.R.S. § 32-1154 (A) and providing for discipline to be imposed upon the Respondent’s license for a failure to comply with the terms of an Order, the burden of proof shifts to the Respondent to establish compliance with the terms of the Order when a question arises as the whether or not the terms of the Order were fully complied with. Alternatively, the Respondent bears the burden of demonstrating by a preponderance of evidence that the Respondent fully complied with the terms of the Registrar’s July 30, 2009 Order. 2. Proof by “preponderance of the evidence” means that it 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, 654 (9th Cir. BAP (Ariz.) 1994). 3. Proof by preponderance of the evidence “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). 4. The Respondent failed to sustain its burden of proof to establish by a preponderance of the evidence that it had fully complied with the terms of the July 30, 2009 Order of the Registrar. 5. A licensed contractor is not entitled to an unlimited period of time or an endless succession of opportunities to comply with specified conditions which reduce, eliminate, or terminate, disciplinary action against the Contractor’s License. RECOMMENDed order In view of the foregoing, it is recommended that the Respondent’s License be revoked. In the event of certification of this Administrative Law Judge Decision by the Director of the Office of Administrative Hearings, the effective date of the Order will be 40 days from the date of the certification.

Done this day, July 11, 2011.

/s/ M. Douglas Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors -----------------------

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