ALJDEC decisions subject to certification as final

2011A-213-ROC · Registrar of Contractors · 2011-06-29

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: June 29, 2011, at 1:00 p.m. APPEARANCES: The Complainant, Margaret Faith DeLue, appeared on her own behalf. The Respondent appeared through its authorized representative, Matthew Harmon. 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. 219566) License issued by the Registrar of Contractors. 2. Undisputed credible testimony and evidence established that the Respondent’s Class B License was suspended for lack of bond from December 18, 2010 through January 25, 2011. 3. The Respondent is also the holder of a Class C-42 (No. 221117) (Roofing) License issued by the Registrar of Contractors. 4. The Respondent is also the holder of a Class C-37 (No. 221184) (Plumbing, including solar) License issued by the Registrar of Contractors. 5. The Respondent is also the holder of a Class C-11 (No. 221185) (Electrical) License issued by the Registrar of Contractors. 6. Credible testimony and evidence established that the Respondent had been performing construction work on a residence located at 13044 N. Upper Loma Linda Lane, Mount Lemmon, Arizona 85619 during the time period from December 18, 2010 through January 20, 2011. 7. The Complainant is the owner of a residence adjacent to the residence located at 13044 N. Upper Loma Linda Lane, Mount Lemmon, Arizona 85619. 8. When the Complainant personally observed the Respondent working at the adjacent residence despite the fact that the Respondent’s Class B License had been suspended for lack of bond on December 18, 2010, she filed a formal complaint against the Respondent with the Registrar of Contractors on January 10, 2011. 9. Credible testimony and evidence established that pursuant to the filing of the formal Complaint, an assigned Agency Inspector conducted an onsite inspection of the residence at issue on January 20, 2011, and informed the Respondent that its Class B License had been suspended on December 18, 2010 for lack of bond. 10. Credible testimony and evidence established that the Respondent then stopped work on the construction project at issue and promptly renewed its bond on January 24, 2011. 11. Credible testimony and evidence established that the Respondent was unaware that its Class B License had been suspended until the assigned Agency Inspector informed the Respondent of the license suspension on January 20, 2011. 12. On January 28, 2011, the Complainant filed a written request for an administrative hearing. 13. Credible testimony and evidence, presented at hearing, established that the Respondent performed construction work as a general contractor on the residence located at 13044 N. Upper Loma Linda Lane, Mt. Lemmon, Arizona 85619, during the time period from December 18, 2010 through January 20, 2011. 14. The fact that the Respondent was unaware that its Class B License had been suspended for lack of bond is not found to be a matter in mitigation. The Respondent is fully responsible for ensuring that its License is in good standing before performing contracting work. 15. Credible testimony and evidence, presented at hearing, established that the Respondent performed contracting work at the residence located at 13044 N. Upper Loma Linda Lane, Mount Lemmon, Arizona 85619, under its Class B License while the Respondent’s Class B License was under suspension. 16. 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 established violations by the Respondent of the charged provisions of A.R.S. § 32-1154 (A) (18) (Contracting or offering to contract while the license is under suspension.)

RECOMMENDed order In view of the foregoing, it is recommended commencing on the effective date of the Registrar’s Order that the Respondent’s Class B License be placed on disciplinary probation for a period of fifteen (15) days. 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, June 29, 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