ALJDEC decisions subject to certification as final

2011A-1312-ROC · Registrar of Contractors · 2011-09-27

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: September 27, 2011, at 8:15 a.m. APPEARANCES: The Complainants appeared through Mary Lou Jourdan. The Respondent appeared on his own behalf. 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. 202259) License issued by the Registrar of Contractors. 2. This is a residential matter where the Respondent performed HVAC work on the Complainants’ residence. 3. The Complainants were dissatisfied with the Respondent’s workmanship and with the Respondent’s abandonment of the construction project and refusal to return and complete the construction project despite their requests that he do so. 4. When the Respondent failed to comply with the Complainants’ requests, the Complainants filed a formal Complaint against the Respondent with the Registrar of Contractors and also filed a civil complaint in the Justice Court, Bullhead City Precinct, County of Mohave, State of Arizona. 5. Credible testimony and evidence established that the same issues of workmanship and abandonment were set forth in both the civil complaint and the complaint at issue. 6. There was no dispute that on February 7, 2011, the Justice of the Peace in the Mohave County Justice Court, State of Arizona issued a default Judgment in CV-2010-2074 against the Respondent, and in favor of the Complainants, in the sum of $2,538.00. 7. Undisputed credible testimony and evidence established that the Respondent moved to vacate the civil court judgment and that on March 23, 2011; the Justice of the Peace in the Mohave County Justice Court issued an Order denying the Respondent’s motion to vacate judgment. 8. The matters set forth in the civil court complaint, which included all of the items of the complaint set forth in the matter at issue, are now res judicata and cannot be reconsidered by the Registrar of Contractors. 9. There was no dispute that the Respondent has failed to pay the Complainants for their civil court judgment against the Respondent in the sum of $2,538.00. 10. The credible evidence of record supports a finding that the Respondent abandoned the construction project at issue and that the Respondent failed to perform his construction work on the Complainants’ residence in a professional and workmanlike manner. 11. Notice is taken of the Respondent’s prior License record with the Registrar of Contractors. CONCLUSIONS OF LAW 1. The Complainants have 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. It is a well settled doctrine and policy of law that final judgments of civil courts may not be subject to collateral attack in subsequent proceedings. The findings and judgment in Justice Court case no. CV-2010- 2074 are res judicata as to the issues and allegations in the instant complaint. 5. The civil court judgment issued in civil court no. CV-2010-2074 established violations by the Respondent of the charged provisions of A.R.S. § 32-1154 (A) (1) (abandonment or failure to perform) and A.R.S. § 32-1154 (A) (3), namely, A.A.C. rule R4-9-108 (failure to perform work in a professional and workmanlike manner). RECOMMENDed order In view of the foregoing, it is recommended commencing on the effective date of the Registrar’s Order that the Respondent’s License be suspended until the Registrar of Contractors receives and accepts written proof that the Respondent has properly satisfied the judgment issued in the parties’ civil case by paying the Complainants the sum of $2, 538.00. It is further recommended that if the Respondent provides written proof acceptable to the Registrar that he has fully satisfies the money judgment issued in the parties’ civil matter (case no. CV-2010-2074), on or before the effective date of this Order, then the above provided license suspension shall not take place and that this matter 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, September 27, 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