ALJDEC decisions subject to certification as final

2010A-308472274-ROC · Registrar of Contractors · 2010-11-22

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: November 22, 2010 at 8:00 a.m. APPEARANCES: The Complainant appeared through its attorney, Richard B. Murphy. 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 are made: FINDINGS OF FACT 1. The Respondent is the holder of a Class KB-01 License (No. 259053) issued by the Registrar of Contractors. 2. Undisputed credible testimony and evidence established that pursuant to the terms of the parties’ written construction agreement the Complainant performed specified plastering work on a construction project wherein the Respondent was acting in the capacity of a general contractor. 3. There was no dispute that the Complainant properly completed all of the specified plastering work 4. Undisputed credible testimony and evidence established that the Complainant has repeatedly billed the Respondent for the completed plastering work and that despite these repeated collection attempts the balance for the Complainant’s plastering work remains due and owing. 5. Undisputed credible testimony and evidence established that the sum of $9,485.00 is the proper balance due and owing to the Complainant from the Respondent. 6. There was no dispute that notwithstanding repeated attempts and billings over a prolonged period of time, said balance $9, 485.00 remains unpaid.

7. The Respondent‘s failure to pay the aforementioned sum of $9,485.00 to the Complainant is not found to be in good faith and accordingly, under all of the facts and circumstances presented herein the Respondent’s conduct is found to constitute a violation of the applicable charged provision of the state’s contracting laws. 8. Notice is taken of the Respondent’s prior good license record with the Registrar of Contractors. CONCLUSIONS OF LAW 1. The Complainant has the burden of demonstrating by a preponderance of the evidence that the Respondent violated the charged sections of the state’s contracting laws. See Culpepper v. State of Arizona, 187 Ariz. 431, 437-38, 930 P.2d 508 (Ariz. App. 1996). 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. Undisputed credible testimony and evidence established that the Respondent violated the charged provisions of A.R.S. § 32-1154 (A) (11) (Failure to pay monies in excess of seven hundred fifty dollars when due for materials or services).

RECOMMENDED ORDER In view of the foregoing, it is recommended commencing on the effective date of the Registrar’s Order that the Respondent’s License be suspended until the Registrar receives and accepts written proof that the Respondent has paid the sum of $9,485.00 to the Complainant. It is further recommended that if the Respondent pays or tenders the above described sum of money on or before the effective date of the Registrar’s Order then the aforementioned license suspension shall not take place. It is further recommended, in addition to the foregoing license suspension, if any, that the Respondent’s License be placed on a period of sixty (60) days disciplinary probation. This additional disciplinary penalty shall commence on the effective date of the Registrar’s Order or on the date on which notice of the Respondent’s compliance with the terms of this Order is filed with the Registrar, whichever is later. 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, November 22, 2010.

/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