ALJDEC decisions subject to certification as final

2009A-2555819-ROC · Registrar of Contractors · 2010-05-11

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: May 11, 2010 APPEARANCES: Beverly Allen, 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 a videoconference rehearing[1] as scheduled. 2. The Complainant was present and submitted evidence in support of the allegations. 3. The Respondent failed to appear and no good cause is known for the non- appearance. 4. The Respondent’s Class A- License No. 194456 is revoked according to the Registrar of Contractors (ROC) website. 5. The Complainant was a trucking firm[2] which delivered sub grade for the Respondent for $90.00 an hour. 6. The Complainant filed the Complaint with the ROC on March 12, 2009. 7. The Complainant presented evidence of having worked 100.75 hours for delivery of earth products on behalf of the Respondent from November 17, 2008 to December 12, 2008.[3] The total owed to the Complainant is $9,067.50. 8. Despite the Complainant’s attempts to collect for services rendered, the Respondent has paid nothing on the amount owed.

Conclusions of Law The Citation and Complaint alleges violations of A.R.S. §32-1154: (A)(7), a wrongful or fraudulent act resulting in substantial injury; and (A)(11), failure to pay money 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’s evidence was not contested and it is deemed competent evidence of the amounts owed by the Respondent. 5. There is no evidence which would constitute a legal defense for the non-payment. 6. The violations are proven as charged.[4] Recommended Order Based on the foregoing, the Administrative Law Judge makes the following Recommended Order: On the effective date of the Order entered in this matter, Respondent B W Construction’s Class A- license (No. 194456) shall be revoked. 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 will be 40 days from the date of that certification.

Done this day, May 11, 2010.

/s/ Allen Reed Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors ----------------------- [1] The Complainant failed to appear for the initial hearing on December 2, 2009. The case was initially dismissed but the rehearing was subsequently granted by the ROC. [2] The Complainant became bankrupt. [3] In subsequent documentation the Complainant apparently made a mathematical error and claimed the total hours was 92.75. However, the total monetary amount did not vary and it is deemed more reliable. [4] The (A)(7) violation for a wrongful act under the statute in effect a the time of the violation is essentially duplicative. The non-payment is the wrongful act; the substantial injury is the amount owed.

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