ALJDEC decisions subject to certification as final

2010A-308476831-ROC · Registrar of Contractors · 2011-04-21

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: April 21, 2011, at 8:00 a.m. APPEARANCES: The Complainant appeared through its authorized representative, Laurel Mellett. The Respondent appeared through its authorized representative, David Caldwell. 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-5 (No. 171261) License was suspended for lack of bond on December 17, 2010. 2. There was no dispute that the Complainant performed specified shotcrete work on a swimming pool construction project wherein the Respondent was acting in the capacity of a general swimming pool contractor. 3. There was no dispute that the Complainant completed all of the specified shotcrete work, including authorized extras and/or change orders. 4. There was no dispute that the Respondent failed to pay the Complainant for its completed shotcrete work. 5. There was no dispute that the Complainant obtained a civil judgment against the Respondent in the sum of $7,660.00 for the Complainant’s completed shotcrete work. 6. There was no dispute that notwithstanding repeated attempts and billings over a prolonged period of time, said balance of $7,660.00 remains unpaid. 7. The Respondent‘s failure to pay the aforementioned sum of $7,660.00 to the Complainant is not found to be in good faith, and accordingly, under all of the facts and circumstances presented herein, Respondent’s conduct is found to constitute a violation of the applicable charged provision 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. 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. §32-1154A (11) (Failure to pay monies when due). RECOMMENDED ORDER In view of the foregoing, it is recommended that on the effective date of the Registrar of Contractor’s Order, the Respondent‘s License be revoked unless the Registrar of Contractors receives and accepts written proof that the Respondent has paid the sum of $7,660.00 to the Complainant. It is further recommended that if 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 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 21, 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