ALJDEC decisions subject to certification as final

2010A-308474026-ROC · Registrar of Contractors · 2011-01-11

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: January 11, 2011 at 8:00 a.m. APPEARANCES: The Complainant appeared through its authorized representative, Tina Hannah. The Respondent appeared through its authorized representative, John Tibbits. 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 K-11 (No. 174680) License issued by the Registrar of Contractors. 2. Credible testimony and evidence established that the Complainant performed specified excavation and trenching work on a residential construction project for the Respondent wherein the Respondent was acting in the capacity of a licensed contractor. 3. Credible testimony and evidence established that the Complainant completed all of the specified excavation and trenching work in a professional and workmanlike manner. 4. The Complainant asserts that the current unpaid balance due and owing from the Respondent to the Complainant for the Complainant’s labor and materials is the total sum of $2,210.00. 5. The Respondent acknowledged that it owes the Complainant the sum of $1,872.50 for the Complainant’s excavation and trenching work at the construction project but denied that it owed any additional money to the Complainant. 6. Credible testimony and evidence, presented at hearing, is sufficient to support a finding that the sum of $2,210.00 is the proper balance due and owing to the Complainant from the Respondent. 7. Credible testimony and evidence established that notwithstanding repeated attempts and billings over a prolonged period of time, said balance of $2,210.00 remains unpaid. 8. The Respondent‘s failure to pay the aforementioned sum of $2,210.00 to the Complainant for the Complainant’s labor and materials 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 provisions of the state’s contracting laws. 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. 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. Credible testimony and evidence supported findings which establish a violation by the Respondent of the provisions of A.R.S. §32-1154 (A) (11) (Failure to pay monies in excess of $750.00) as charged in the Citation. RECOMMENDED ORDER In view of the foregoing, it is recommended commencing on the effective date of this Order that the Respondent’s License be suspended until the Registrar receives and accepts written proof that the Respondent has paid the sum of $2,210.00 to the Complainant. It is further recommended that if Respondent pays the above described sum of money to the Complainant on or before the effective date of the Registrar’s Order then the aforementioned indefinite license suspension shall not take place and that this matter be closed. 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 11, 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