ALJDEC decisions subject to certification as final

2010-100527783 · Registrar of Contractors · 2010-06-07

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: May 21, 2010 APPEARANCES: Rodney Haile, Owner, represented himself. No one appeared for the Respondent. ADMINISTRATIVE LAW JUDGE: Allen Reed _____________________________________________________________________ Findings of Fact 1. This matter came of for hearing as scheduled. 2. The Complainant’s owner was present. The Complainant is a nursery supply enterprise that provides plants and landscaping materials. 3. The Respondent, a specialty contractor, as well as a general commercial and residential contractor, failed to appear because the Respondent had made a partial payment of $500.00 to the Complainant on May 17, 2010 and requested additional time to pay the remaining balance. The Complainant has not negotiated the Respondent’s check as of the hearing. 4. At the time of the $500.00 payment, the Respondent told the Complainant that the amount still owed to the Complainant would be paid. However, there is no written agreement, and there is no time frame for final payment. 5. The Complainant requested that the hearing proceed. 6. The Complainant filed Complaint with the Registrar of Contractors on October 28, 2009. The Complaint alleged that the Respondent owed $2,537.37 to the Complainant. 7. The evidence is undisputed. The Respondent’s Answer to the Citation and Complaint clearly admits to the debt owed. 8. The Complainant’s witness and employee, Pat Fox (Fox), testified that the Respondent was building a subdivision in Quartzite, Arizona for which the Complainant supplied landscaping materials. Based on the undisputed evidence, the Respondent still owes $2,037.37[1] for those materials. Conclusions of Law The Citation and Complaint alleges violation of A.R.S. §32-1154 (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 competent evidence which would constitute a legal defense for the non-payment.[2] 6. The violation is proven as charged. 7. However, the allegation is against all three of the Respondent’s licenses. There is no evidence the Respondent used the materials for work performed under either of the commercial licenses. Therefore the Citation and Complaint against those licenses should be dismissed. 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 DB Builders Inc.’s Class B- license (No. 220181) shall be suspended until the ROC receives written proof that the Respondent has completed payment in the total amount of Two Thousand-Five Hundred-thirty Seven and 37/100’s Dollars ($2,537.37) to the Complainant. If the ROC receives satisfactory written proof that the Respondent has complied with the foregoing condition on or before the date specified above, then the above provided license suspension shall not take place and this matter shall be closed. The Citation and Complaint against the Respondent’s Class A license (No. 220182) and Class B-01 license (No. 220183) shall be dismissed. 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, June 7, 2010.

/s/ Allen Reed Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors ----------------------- [1] If the $500.00 check of May 17, 2010 clears. Otherwise the Respondent still owes $2,537.37 [2] The hearsay assertion of inability to pay set forth in the Answer does not constitute a competent defense, nor does it address whether the Respondent was paid for that portion of the work which included the Complainant’s materials.

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