ALJDEC decisions subject to certification as final

2010A-3358405-ROC-com · Registrar of Contractors · 2012-02-23

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: February 23, 2012, at 1:00 p.m. APPEARANCES: The Complainant appeared through its authorized representative, Yashica Turner. 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 on Compliance Hearing are made: FINDINGS OF FACT 1. The Respondent’s License No. B.085464-R, issued by the Registrar of Contractors was voluntarily canceled on August 29, 2011. 2. The Order Reopening Complaint and Setting Compliance Hearing provides, in pertinent part, as follows; At the Compliance Hearing, the parties may offer evidence and testimony as to whether or not Respondent has engaged in conduct constituting a violation of A.R.S. § 32-1154(A)(11) as set forth in the Citation and Complaint and breached the terms set forth in the parties’ Settlement Agreement. If the assigned Administrative Law Judge recommends that discipline is to be imposed on Respondent’s License, and the Registrar adopts such recommendation, the discipline may be imposed immediately, based upon a finding that the in addition to any violation contracting law that may have been committed by Respondent, Respondent further breached the parties’ Settlement Agreement. 3. Undisputed credible testimony and evidence established that the Respondent entered into a Settlement Agreement with the Complainant wherein the Respondent agreed to make specified monthly payments to the Complainant to resolve the undisputed monetary debt that the Respondent owed the Complainant. 4. Undisputed credible testimony and evidence established that the Respondent breached the terms of the parties’ Settlement Agreement by ceasing monthly payments to the Complainant in February 2011. 5. Undisputed credible testimony and evidence established that as of February 23, 2012, the Respondent owes the Complainant the undisputed sum of $1,626.95. 6. Undisputed credible testimony and evidence established that Respondent owes the sum of $1,626.95 to the Complainant for materials and services rendered in connection with the Respondent’s operations as a licensed contractor. 7. Undisputed credible testimony and evidence established that the Respondent had been paid for the materials and services provided by the Complainant in this matter. 8. The Respondent’s undisputed failure to comply with the terms of the parties’ Settlement agreement, and its undisputed failure to pay the Complainant the remaining $1,626.95 due, are found to constitute a violation of the charged provisions of A.R.S. § 32-1154 (A) (11) (failure to pay monies in excess of seven hundred fifty dollars when due). 9. Notice is taken of the Respondent’s prior License record by review of the Registrar of Contractors’ public website. 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). It “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). 3. Undisputed credible testimony and evidence supported findings which establish violations by the Respondent of 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 rendered in connection with the licensee’s operations as a contractor). RECOMMENDed order In view of the foregoing, it is recommended that the Respondent’s License be revoked. 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, February 23, 2012.

/s/ M. Douglas Administrative Law Judge

Originally transmitted electronically on February 27, 2012, to:

William A. Mundell, Director Registrar of Contractors

Resubmitted electronically with corrections on March 19, 2012

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Office of Administrative Hearings 1400 West Washington, Suite 101 Phoenix, Arizona 85007 (602) 542-9826