ALJDEC decisions subject to certification as final

2010A-308477404-ROC · Registrar of Contractors · 2011-08-03

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: August 3, 2011, at 1:00 p.m. APPEARANCES: The Complainant appeared through its attorney, Mark Kirkorsky. 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 K-39 (No. 147866) License issued by the Registrar of Contractors. 2. Undisputed credible testimony and evidence established that the Complainant furnished construction materials to the Respondent for several construction projects wherein the Respondent was acting in the capacity of a licensed contractor. 3. Undisputed credible testimony and evidence established that the sum of $5,443.51 is the current balance due and owing to the Complainant from the Respondent for the construction materials that were furnished to the Respondent. 4. Undisputed credible testimony and evidence established that the Respondent did not dispute that it owed the sum of $5,443.51 to the Complainant. 5. Undisputed credible testimony and evidence established that the Respondent had repeatedly entered into settlement agreements with the Complainant to pay the undisputed amount owed to the Complainant and that the Respondent had repeatedly failed to comply with the payment agreements. 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 Respondent‘s failure to pay the aforementioned sum of $5,443.51 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 provisions of the state’s contracting laws. 8. Notice is taken of the Respondent’s 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 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 supported findings which establish that the Respondent has 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 that on the effective date of the Registrar’s Order that the Respondent’s License be revoked unless the Registrar receives and accepts written proof that Respondent has paid the sum of $5,443.53 to the Complainant. It is further recommended that if Respondent provides acceptable written proof that it has paid the sum of $5,443.51 to the Complainant on or before the effective date of the Registrar’s Order then the aforementioned license revocation shall not take place and that this mater 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, August 3, 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