ALJDEC decisions subject to certification as final

2011A-1995-ROC · Registrar of Contractors · 2011-08-04

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: August 4, 2011, at 1:00 p.m. APPEARANCES: The Complainant appeared through its authorized representative, Angela Essig. The Respondent appeared through its authorized representative, Bob Bartholomew. 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 A-5 (No. 180100) License issued by the Registrar of Contractors. 2. The Complainant filed a complaint alleging that the Respondent owed the Complainant the sum of $9,513.83 for the Respondent’s use of the Complainant’s landfill facility. 3. The Respondent’s authorized representative, Bob Bartholomew, admitted that he had utilized the Complainant’s landfill facility as am individual but denied that the Respondent Bartholomew Services Inc. (Corp.) had utilized the Complainant’s landfill facility. 4. Credible testimony and evidence established that the Respondent’s authorized representative, president and qualifying party, Bob Bartholomew, had signed an Application for Credit and Agreement on behalf of the Respondent, Bartholomew Services Inc. with the Complainant on January 17, 2007. 5. Credible testimony and evidence established that pursuant to the terms of the Application for Credit and Agreement the Complainant allowed the Respondent to utilize the Complainant’s landfill facility from December 8, 2010, through March 2, 2011. 6. Credible testimony and evidence established that the Complainant denied the Respondent further access to the landfill facility after March 2, 2011, based upon the Respondent’s failure to pay the Complainant for its use of the Complainant’s landfill facility. 7. Credible testimony and evidence established that the Respondent utilized the Complainant’s land fill facility in connection with the Respondent’s operations as a licensed contractor. 8. The weight of the evidence of record was sufficient to support a finding that the sum of $9,513.83 is the proper balance due and owing to the Complainant from the Respondent for the Respondent’s use of the Complainant’s landfill facility. 9. Credible testimony and evidence established that notwithstanding repeated attempts and billings over a prolonged period of time, said balance of $9,513.83 remains unpaid. 10. The Respondent‘s failure to pay the aforementioned sum of $9,513.83 to the Complainant is not found to be in good faith and accordingly, under all of the facts and circumstances presented herein the Respondent’s conduct is found to constitute a violation of the applicable charged provision of the state’s contracting Laws. 11. 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. Credible testimony and evidence supported findings which establish that the Respondent 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 rendered in connection with the licensee’s operations as a contractor). RECOMMENDED ORDER In view of the foregoing, it is recommended commencing on the effective date of the Registrar of Contractors’ Order that the Respondent’s License be suspended until the Registrar of Contractors receives and accepts written proof that Respondent has paid the sum of $9,513.83 to the Complainant. It is further recommended that if Respondent provides acceptable written proof to the Registrar of Contractors that is has paid the above described sum of money on or before the effective date of the Registrar’s Order then the aforementioned indefinite 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, August 4, 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