ALJDEC decisions subject to certification as final

2010A-308475835-ROC · Registrar of Contractors · 2011-06-02

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: April 26, 2011, at 1:00 p.m. APPEARANCES: CONSOLIDATED ELECTRICAL DISTRIBUTORS INC. appeared through its authorized representative, Jeff Huppler. ARIZONA POWER SAVE L C appeared through their attorney, Charles I. Kelhoffer Esq. . 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. Respondent Arizona Power Save L C is the holder of a Class C-11 (No. 250672) License issued by the Registrar of Contractors. 2. The Class B (No. 250671) of Respondent Power Save L C was suspended for non-renewal on December 1, 2010. 3. This matter was held open until June 1, 2011, pursuant to the terms of a joint request submitted by the parties to hold the record open to enable the parties sufficient time to attempt to complete their ongoing settlement negotiations. 4. Undisputed credible testimony and evidence established that the Complainant provided electrical equipment to the Respondents for various residential construction projects wherein the Respondents were acting in the capacity of licensed contractors. 5. Undisputed credible testimony and evidence established that the sum of $137, 465.51 is the proper balance due and owing to the Complainant from the Respondents. 6. Undisputed credible testimony and evidence established that notwithstanding repeated attempts and billings over a prolonged period of time, said balance remains unpaid. 7. The Respondents’ failure to pay the aforementioned sum of $137,465.51 to the Complainant is not found to be in good faith, and accordingly, under all of the facts and circumstances presented herein, Respondents’ 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 Respondents 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 Respondents violated the provisions of A.R.S. § 32-1154 (A) (11) (Failure to pay monies in excess of seven hundred fifty dollars when due). RECOMMENDED ORDERS Case No. 2010-[number redacted] 1. In view of the foregoing, it is recommended that on the effective date of the Registrar’s Order, the Class B License (No. 250671) of Respondent Arizona Power Save L C be revoked unless the Registrar of Contractors receives and accepts written proof that said Respondent has paid the sum of $137, 465.51 to the Complainant. It is further recommended that if the Respondent pays the above described sum of money, on or before the effective date of the Registrar’s Order, then the aforementioned license revocation shall not take place and the matter closed. Case No. 2010-[number redacted] 2. In view of the foregoing, it is recommended that on the effected date of the Registrar’s Order, the Class C-11 (No. 250672) of Respondent Arizona Power Save L C be revoked unless the Registrar of Contractors receives and accepts written proof that said Respondent has paid the sum of $137, 465.51 to the Complainant. It is further recommended that if the Respondent pays the above described sum of money, on or before the effective date of the Registrar’s Order, then the aforementioned license revocation shall not take place and the matter 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 these Orders will be 40 days from the date of the certification. Done this day, June 2, 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