ALJDEC decisions subject to certification as final

2010A-308473147-ROC · Registrar of Contractors · 2011-01-20

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: January 18, 2011 at 8:00 a.m. APPEARANCES: The Complainant appeared through its authorized representative, Jim Lugar. 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 A (No.084121) License issued by the Registrar of Contractors. 2. There was no dispute that, pursuant to the parties’ construction agreement, the Complainant provided labor and materials for the installation of panels, PLC, electrical, programming and other appurtenant items on a construction project wherein the Respondent was acting in the capacity of a licensed general engineering contractor. 3. There was no dispute that the Complainant properly completed all of the specified construction work, including all authorized extras and/or change orders. 4. There was no dispute that the Respondent paid the first $84,863.59 owed to the Complainant in a timely manner. 5. There was no dispute that the Respondent did not pay the final $50,000.00 owed to the Complainant until the Complainant filed a formal complaint against the Respondent with the Registrar of Contractors and the matter was scheduled for an administrative hearing. 6. There was no dispute that, as of the date of the hearing, the Respondent had paid the final $50,000.00 to the Complainant and that the Complainant has now been fully paid for the labor and materials that the Complainant furnished for the construction project. 7. Undisputed credible testimony and evidence established that the Respondent had the capacity to pay the Complainant in a timely manner for the labor and materials that the Complainant provided for the construction project at issue. 8. The Respondent‘s failure to pay the aforementioned sum of $50,000.00 to the Complainant in a timely manner 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. 9. Notice is taken of the Respondent’s prior good 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 placed on a period of thirty (30) days disciplinary probation. 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, January 20, 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