ALJDEC decisions subject to certification as final

2009A-2264616-ROC-com · Registrar of Contractors · 2012-04-10

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: April 10, 2012, at 8:15 a.m. APPEARANCES: Complainant appeared through its authorized representative, John Jehle. Respondent failed to appear. ADMINISTRATIVE LAW JUDGE: M. Douglas

The following Findings of Fact, Conclusions of Law and Recommended Order for Rehearing on Compliance Hearing are made: FINDINGS OF FACT 1. The Order Reopening Complaint and Setting Compliance Hearing provides, in pertinent part, as follows: At the Compliance Hearing, the parties’ may offer evidence and testimony as to whether or not Respondent has engaged in conduct constituting violations of A.R.S. § 32-1154(A)(7) and (11) as set forth in the Citation and Complaint and breached the terms set forth in the parties’ November 3, 2009 Settlement Agreement. If the assigned Administrative Law Judge recommends that discipline is to be imposed upon Respondent’s License, and the Registrar adopts such recommendation, the discipline may be imposed immediately, based upon a finding that in addition to any violation of contracting laws that have been committed by Respondent, Respondent further breached the parties’ Settlement Agreement. 2. Undisputed credible testimony and evidence established that Respondent breached the terms of the parties’ Settlement Agreement by failing to pay the final two thousand dollar ($2,000.00) payment that was due to be paid to Complainant on January 3, 2010, for materials or services rendered in connection with Respondent’s operations as a contractor. . 3. There was no dispute that Complainant made numerous attempts over an extended period of time to obtain the final payment due from Respondent in accordance with the terms of the parties’ Settlement Agreement. 4. 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 of the parties’ Settlement Agreement. On the contrary, undisputed credible evidence of record establishes that Respondent has repeatedly failed to comply with the terms of the parties’ Settlement Agreement and that Respondent’s efforts appear to have been directed to delay and excuse payment to Complainant, rather than to comply with the terms of the parties’ Settlement Agreement. 5. Administrative notice is taken of Respondent’s prior Licensee record as reflected on the Registrar of Contractors’ public website on April 10, 2012. Such prior License record reflects that License No. KB-1.211873-D of Red Mountain Construction and Development LLC dba Simoneau expired on November 1, 2010. CONCLUSIONS OF LAW 1. The burden of proof at an administrative hearing falls to the party asserting a claim, right, or entitlement and the standard of proof on all issues in this matter is by a preponderance of the evidence. See A.A.C. R2-19-119. 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.” Arnold and Baker Farms, 177 B.R. 648, 654 (9th Cir. BAP (Ariz.) 1994). 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). 3. Undisputed credible testimony and evidence supported findings which establish that Respondent violated the charged provisions of A.R.S. § 32- 1154(A)(7)(wrongful act), and A.R.S. § 32-1154(A)(11)(failure to pay monies in excess of seven hundred fifty dollars when due for materials or services rendered in connection with the licensee’s operations as a contractor). RECOMMENDed order In view of the foregoing, it is recommended that License No. KB- 1.211873-D of Red Mountain Construction and Development LLC dba Simoneau 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, April 10, 2012.

/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