ALJDEC decisions subject to certification as final

2009A-3031695-ROC · Registrar of Contractors · 2012-03-30

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: March 30, 2012, at 1:00 p.m. APPEARANCES: The Complainants appeared through their attorney, Daniel J. Oehler, Esq, Daniel J. Oehler Law Offices. The Respondent failed to appear. ADMINISTRATIVE LAW JUDGE: M. Douglas

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 Order Denying Request for Rehearing and Motion to Dismiss/Order 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 Complainants have denied Respondent access to comply with the [Registrar of Contractor’s]…directives or whether or not Respondent has failed to comply with the Registrar’s directives, absent unreasonable interference on the part of Complainants. If it is determined that Respondent has failed to comply with the terms of the Registrar’s previously entered Order in this matter, absent unreasonable interference by Complainants and/or Counsel for Complainants, Respondent’s B.157428-R License shall be subject to an immediate revocation.

2. Undisputed credible testimony and evidence established that Respondent has failed to comply with the terms of the Registrar of Contractor’s June 15, 2010, Order. 3. Credible evidence established that 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 Registrar’s June 15, 2010 Order. On the contrary, undisputed credible testimony and evidence established that Respondent has repeatedly failed to properly accomplish compliance with the terms and conditions of the prior Order and that the Respondent’s efforts appear to have been directed to delay and excuse, rather than to achieve, compliance with the Registrar’s June 15, 2010 Order. 4. Undisputed credible testimony and evidence established that Complainants have repeatedly provided Respondent, and Respondent’s employees, reasonable access to their residence. 5. Administrative notice is taken of Respondent’s prior License record as reflected on the Registrar of Contractors’ public website on March 30, 2012. Such prior License record reflects that License No. B.157428-R of Avalon Custom Homes LLC was revoked by the Registrar of Contractors on November 17, 2011, and on February 21, 2012. 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.” In re 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 support findings which establish that Respondent has failed to fully comply with the terms of the June 15, 2010 Order of the Registrar.

RECOMMENDed order In view of the foregoing, it is recommended that that License No. B.157428-R of Respondent Avalon Custom Homes LLC 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 5, 2012.

/s/ M. Douglas Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors

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