ALJDEC decisions subject to certification as final

2010A-43721-ROC · Registrar of Contractors · 2012-02-15

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: February 15, 2012, at 1:00 p.m. APPEARANCES: The Complainant appeared through Assistant City Attorney, David Womochil. The Respondent appeared through its authorized representative, Steve Wood. 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 B (No. 096638) License issued by the Registrar of Contractors. 2. Undisputed credible testimony and evidence established that the Respondent has failed to pay transaction taxes imposed by the City of Flagstaff pursuant to applicable statute. 3. There was no dispute that as of February 1, 2012, the Respondent owes the City of Flagstaff the sum of $23,397.96 in back taxes because the Respondent failed to pay its audit assessment for the period from January 2002 through July 2005. 4. There was no dispute that the audit assessment performed by the City of Flagstaff was correct and that all of the back taxes owed by the Respondent to the City of Flagstaff were incurred by the Respondent’s business operations as a licensed contractor. 5. Undisputed credible testimony and evidence established that the City of Flagstaff initiated its collection effort for the undisputed unpaid back taxes from the Respondent in 2008. 6. Undisputed credible testimony and evidence established that the Respondent has entered into three (3) separate written payment agreements with the City of Flagstaff to resolve the matter at issue and that the Respondent has failed to honor any of the payment agreements that it has entered into with the City of Flagstaff. 7. Credible testimony and evidence established that the Respondent’s actions over a prolonged period of time are not indicative of a good faith desire to resolve this matter by paying the City of Flagstaff the undisputed back taxes owed by the Respondent. On the contrary, credible evidence of record establishes that the Respondent has repeatedly failed to honor its payment agreements with the City of Flagstaff and that the Respondent’s efforts appear to have been directed to delay and excuse payment rather than pay the undisputed back taxes. 8. A licensed contractor is not entitled to an unlimited period of time or an endless succession of opportunities to comply with specified conditions which reduce, eliminate, or terminate, disciplinary action against the contractor’s License. 9. 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). 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. Credible testimony and evidence supported findings which establish that the Respondent violated the charged provisions of A.R.S. §32-1154 (A) (5) (failure to pay income taxes, withholding taxes, or any tax imposed by title 42, chapter 8, and incurred in the operation of the licensed business). RECOMMENDED ORDER In view of the foregoing, it is recommended that the Respondent License be revoked on the effective date of the Registrar’s Order unless the Registrar of Contractors receives and accepts written proof that the Respondent has paid the sum of $23,397.96 to the City of Flagstaff. It is further recommended that if Respondent pays the above described sum of money for unpaid back taxes to the City of Flagstaff, 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, February 15, 2012.

/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