ALJDEC decisions subject to certification as final

2010A-308472402-ROC-res · Registrar of Contractors · 2011-08-19

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: August 19, 2011, at 8:00 a.m. APPEARANCES: The Complainant appeared through his attorney, Matthew Pierce. 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’s Class B (No. 212407) License was voluntarily cancelled by the Respondent on October 4, 2010, and revoked by the Registrar of Contractors on May 27, 2011. 2. Undisputed credible testimony and evidence established that the Complainant 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. 3. Undisputed credible testimony and evidence established that the Complainant gave the Respondent an extended period of time and numerous opportunities to construct the new residence. 4. Undisputed credible testimony and evidence established that the Respondent lost the lot for the Complainant’s new residence in a foreclosure action and that the Respondent then abandoned the construction project. 5. When the Respondent abandoned the construction project, the Complainant demanded the return of the $41,000.00 deposit that he had paid the Respondent. 6. There was no dispute that the Respondent failed to return the $41,000.00 deposit to the Complainant. 7. Undisputed credible testimony and evidence established that the Respondent acknowledged that it was unable to return the Complainant’s money to him and that the Respondent then offered to resolve the matter by making monthly payments to the Complainant until the entire sum of $41,000.00 was repaid. 8. Undisputed credible testimony and evidence established that the Complainant accepted the Respondent’s offer to make monthly payments and that the Respondent paid a total of $11,000.00 in monthly payments to the Complainant pursuant to the terms of the parties’ resolution agreement. 9. Undisputed credible testimony and evidence established that the Respondent then stopped making the agreed upon monthly payments to the Complainant. 10. When the Respondent stopped making the agreed upon monthly payments, the Complainant filed a formal complaint against the Respondent with the Registrar of Contractors. 11. Undisputed credible testimony and evidence established that the sum of $30,000.00 is the proper balance due and owing to the Complainant from the Respondent. 12. Undisputed credible testimony and evidence established that notwithstanding repeated collection attempts over a prolonged period time, said balance of $30,000.00 remains unpaid to the Complainant. 13. Undisputed credible testimony and evidence established that the Respondent performed no construction work for the money that the Complainant paid the Respondent as a deposit, and that the Complainant received nothing of value for the money that he paid the Respondent. 14. The Respondent’s actions, in accepting a $41,000.00 deposit from the Complainant and then failing to perform any construction work and abandoning the construction project, are found to constitute an abandonment of the construction project without legal excuse. 15. The Respondent’s action, in failing to return the Complainant’s deposit of $41,000.00 to him despite the undisputed fact that the Respondent entered into a resolution agreement to repay the entire sum to the Complainant in monthly payments, is found to constitute an abandonment of the construction project without legal excuse. 16. Notice is taken of the Respondent’s prior 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 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 supported findings which establish 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 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 the Order will be 40 days from the date of the certification.

Done this day, August 19, 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