ALJDEC decisions subject to certification as final

2010A-308472309-ROC · Registrar of Contractors · 2010-12-06

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: December 1, 2010 at 1:00 p.m. APPEARANCES: The Complainants, Jan and Kinga Czupta and Walter J. Wrobel, appeared through their attorney, Robert C. Maysey. The Respondent appeared through its attorney, Sharma Hammond. ADMINISTRATIVE LAW JUDGE: M. Douglas

Evidence and testimony were presented and the following Findings of Fact, Conclusions of Law and Recommended Orders are made: FINDINGS OF FACT 1. The Respondent’s Class B License has been voluntarily canceled by the Respondent. 2. These matters were consolidated for hearing on October 29, 2010, pursuant to the Complainants’ unopposed Motion for Consolidation. 3. Credible testimony and evidence established that Complainant Walter J. Wrobel paid the Respondent the sum of $41,000.00 as a deposit for the reservation of a lot and the construction of a new residence. 4. Credible testimony and evidence established that Complainant Walter J. Wrobel gave the Respondent an extended period of time and numerous opportunities to construct the new residence. 5. Credible testimony and evidence established that the Respondent lost the lot for the new residence for Complainant Walter J. Wrobel in a foreclosure action and that the Respondent then abandoned the construction project. 6. When the Respondent abandoned the construction project, Complainant Walter J. Wrobel demanded the return of the $41,000.00 deposit that he had paid the Respondent. 7. There was no dispute that the Respondent failed to return the $41,000.00 deposit to Complainant Walter J. Wrobel. 8. Credible testimony and evidence established that the Respondent acknowledged that it was unable to return Complainant Walter J. Wrobel’s deposit to him, and Respondent offered to resolve the matter by making monthly payments to Complainant Walter J. Wrobel until the entire sum of $41,000.00 was repaid. 9. There was no dispute that Complainant Walter J. Wrobel accepted the Respondent’s offer to make monthly payments and that the Respondent made several payments to the him pursuant to the terms of the Respondent’s offer to make such payments. 10. When the Respondent stopped making the agreed upon monthly payments, Complainant Walter J. Wrobel filed a formal complaint against the Respondent with the Registrar of Contractors. 11. Credible testimony and evidence established that the sum of $26,000.00 is the proper balance due and owing to Complainant Walter J. Wrobel from the Respondent. 12. Credible testimony and evidence established that notwithstanding repeated collection attempts over a prolonged period of time, said balance of $26,000.00 remains unpaid to Complainant Walter J. Wrobel. 13. Credible testimony and evidence established that the Respondent performed no construction work for the money that Complainant Walter J. Wrobel paid the Respondent as a deposit and that Complainant Walter J. Wrobel received nothing of value for the money that he paid the Respondent. 14. Credible testimony and evidence established that Complainants Jan and Kinga Czupta paid the Respondent the sum of $85,000.00 as a deposit for the reservation of a lot and the construction of a new residence. 15. Credible testimony and evidence established that Complainants Jan and Kinga Czupta gave the Respondent an extended period of time and numerous opportunities to comply with the terms of their construction agreement. 16. Credible testimony and evidence established that the Respondent lost the lot for the new residence for Complainants Jan and Kinga Czupta in a foreclosure action and that the Respondent then abandoned the construction project. 17. When the Respondent abandoned the construction project, Complainants Jan and Kinga Czupta demanded the return of the $85,000.00 deposit that they had paid the Respondent. 18. There was no dispute that the Respondent failed to return the $85,000.00 deposit to Complainants Jan and Kinga Czupta. 19. Credible testimony and evidence established that the Respondent acknowledged that it was unable to return the deposit of Complainants Jan and Kinga Czupta to them and offered to resolve the matter by making monthly payments to Complainants Jan and Kinga Czupta until the entire sum of $85,000.00 was repaid to them. 20. There was no dispute that Complainants Jan and Kinga Czupta accepted the Respondent’s offer to make monthly payments and that the Respondent made several payments to the Complainants pursuant to the terms of the Respondent’s offer to make such payments. 21. When the Respondent stopped making the agreed upon monthly payments, Complainants Jan and Kinga Czupta filed a formal complaint against the Respondent with the Registrar of Contractors. 22. Credible testimony and evidence established that the sum of $52,000.00 is the proper balance due and owing to Complainants Jan and Kinga Czupta from the Respondent. 23. Credible testimony and evidence established that the Respondent performed no construction work for the money that Complainants Jan and Kinga Czupta paid the Respondent as a deposit and that the Complainants received nothing of value for the money that they paid the Respondent. 24. The Respondent’s actions, in accepting an $41,000.00 deposit from Complainant Walter J. Wrobel and then abandoning the construction project, and thereafter failing to perform any construction work or return the money to Walter J. Wrobel despite entering into an agreement to do so, are found to constitute an abandonment of the construction project without legal excuse. 25. The Respondent’s actions, in accepting an $85,000.00 deposit from Complainants Jan and Kinga Czupta and then abandoning the construction project, and thereafter failing to perform any construction work or return the money to Complainants Jan and Kinga Czupta despite entering into an agreement to do so, are found to constitute an abandonment of the construction project without legal excuse. 26. Notice is taken of the Respondent’s prior License record with the Registrar of Contractors. CONCLUSIONS OF LAW 1. The burden of proof at an administrative hearing is generally upon the Complainants. Utah Construction Company v. Berg et al., 68 Ariz. 285, 205 P.2n 367 (1949). 2. The Complainants have the burden of demonstrating by a preponderance of the evidence that the Respondent violated the charged sections of the state’s contracting laws. Culpepper v. State of Arizona, 187 Ariz. 431, 437-38, 930 P.2d 508 (Ariz. App. 1996). 3. 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). 4. 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). 5. Credible testimony and evidence supported findings which established that the Respondent violated the charged provisions of A.R.S. § 32-1154 (A) (1) (Abandonment of a contract or refusal to perform after submitting a bid on work without legal excuse for the abandonment or refusal). . RECOMMENDed order FOR DOCKET NO. 2010A-[number redacted]-ROC In view of the foregoing regarding, it is recommended that the Respondent’s License be revoked on the effective date of this Order of Revocation. RECOMMENDED ORDER FOR DOCKET NO. 2010A-[number redacted]-ROC In view of the foregoing, it is recommended that the Respondent’s License be revoked on the effective date of this Order of Revocation.

In the event of certification of this Administrative Law Judge Decision by the Director of the Office of Administrative Hearings, the effective date of these Orders will be the date of the certification.

Done this day, December 6, 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