ALJDEC decisions subject to certification as final

2009A-443254-ROC · Registrar of Contractors · 2011-09-01

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: September 1, 2011, at 10:00 a.m. APPEARANCES: The Complainant appeared on her own behalf. The Respondent failed to appear. 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 August 13, 2009 Default Decision and 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 Respondent’s Class B (No. 152640) License expired on April 1, 2011. 2. The Registrar’s Order Denying Request for Rehearing and Setting Compliance Hearing provides, in pertinent part, as follows: IT IS FURTHER ORDERED that a Compliance Hearing be scheduled in the expedited course of docketing in the Flagstaff area. At the Compliance Hearing, the parties may present evidence and testimony as to whether or not Respondent has failed to comply with the Registrar’s August 13, 2009 Default Decision and Order, absent unreasonable interference or denial of access by Complainants. If it is determined that Respondent has failed to comply with the Registrar’s August 13th Default Decision and Order, absent unreasonable interference or denial of access by Complainants, then Respondent’s B.152640-R License may be subject to the immediate imposition of discipline. If it is determined that Complainants have unreasonably interfered or denied access to Respondent or its representatives, then this matter shall be closed without the imposition of discipline, and Complainants shall not be allowed access to the Residential Contractors’ Recovery Fund, even if otherwise found to be eligible. 3. Undisputed credible testimony and evidence established that the Respondent did not perform any corrective work on the Complainant’s residence after the Default Decision and Order was issued on August 13, 2009 (August 13, 2009 Default Decision and Order). 4. Undisputed credible testimony and evidence established that the Respondent failed to contact the Complainant and arrange access to her residence to perform the corrective action required in the August 13, 2009 Default Decision and Order. 5. Undisputed credible testimony and evidence established that the Complainant would have given the Respondent reasonable access to her residence had the Respondent asked for such access in order to comply with the terms of the August 13, 2009 Decision and Order. 6. Undisputed credible testimony and evidence established that there was no denial of access to the Respondent. 7. Undisputed credible testimony and evidence established that the Respondent has failed to comply with the terms of the August 13, 2009 Default Decision and Order. 8. 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 of the August 13, 2009 Default Decision and Order. On the contrary, credible evidence of record established that the Respondent failed to even try and comply with the terms of the August 13, 2009 Default Decision and Order and that the Respondent’s efforts appear to have been directed to delay and excuse rather than to achieve compliance with the August 13, 2009 Default Decision and Order. CONCLUSIONS OF LAW 1. The Respondent bears the burden of demonstrating by a preponderance of the evidence that the Respondent has fully complied with the terms of the Registrar’s August 13, 2009 Default Decision and Order. A.A.C. R2-19-119 (B) (1) and A.A.C. R2-19-119 (B) (2). 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, by failing to appear at the hearing for this matter, failed to sustain the required burden of proving by a preponderance of relevant, substantial and probative evidence that the Respondent had fully complied with the terms of the August 13, 2009 Default Decision and Order. 5. The Respondent 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 Respondent’s License. RECOMMENDed order In view of the foregoing, it is recommended that the Respondent’s License be immediately 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, September 1, 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