ALJDEC decisions subject to certification as final

2010A-308475792-ROC · Registrar of Contractors · 2011-04-07

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: April 7, 2011, at 8:00 a.m. APPEARANCES: The Complainant appeared through its authorized representative, Felipe Bencomo. The Respondent appeared through its authorized representative, Ruben Granados. 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-57 (No. 167416) License issued by the Registrar of Contractors. 2. Credible testimony and evidence established that the Complainant performed agreed upon hauling work for several demolition and construction projects for the Respondent. 3. Credible testimony and evidence established that the Respondent was acting in the capacity of a licensed contractor when the hauling services were performed. 4. Credible testimony and evidence established that when the Respondent failed to pay the Complainant for its hauling work, the Complainant filed a civil action against the Respondent. 5. There was no dispute that on October 19, 2009, the Complainant obtained a civil judgment in Civil Case No. CV09013153 against the Respondent in the sum of $10,000.00 plus interest, costs, and attorney’s fees. 6. There was no dispute that notwithstanding repeated collection attempts over an extended period of time, the civil judgment remains unpaid. 7. The Respondent ‘s failure to fully satisfy the aforementioned civil judgment to 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 charged provisions of the state’s contracting laws. 8. Notice is taken of the Respondent’s good 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. Credible testimony and evidence supported findings which establish 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). RECOMMENDED ORDER In view of the foregoing, it is recommended that commencing on the effective date of the Registrar of Contractors’ Order, the Respondent’s License be suspended until the Registrar of Contractors receives and accepts written proof that Respondent has fully satisfied the Judgment that the Complainant obtained against the Respondent in Civil Case No. CV09013153, in the sum of $10,000.00, plus interest, costs, and attorney’s fees. It is further recommended that if Respondent provides acceptable written proof to the Registrar of Contractors that the Respondent has fully satisfied the above described civil judgment on or before the effective date of the Registrar’s Order, then the aforementioned indefinite license suspension shall not take place and this matter shall 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, April 7, 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