ALJDEC decisions subject to certification as final

2011A-2617-ROC · Registrar of Contractors · 2011-09-27

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: September 27, 2011, at 1:00 p.m. APPEARANCES: The Complainant appeared through its authorized representative, Carla M. Cruise. 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 are made: FINDINGS OF FACT 1. The Respondent’s Class KB-1 (No. 234116) License was suspended by the Registrar of Contractors on July 1, 2011, for non-renewal. 2. Undisputed credible testimony and evidence established that pursuant to the parties written construction agreement the Complainant performed specified mechanical work on a commercial construction project wherein the Respondent was acting in the capacity of a general contractor. 3. Undisputed credible testimony and evidence established that the Complainant completed all of the specified mechanical work, including all authorized extras and/or change orders. 4. Undisputed credible testimony and evidence established that, although the Respondent has been paid in full for the Complainant’s mechanical work on the commercial construction project, the Respondent has failed to pay the Complainant the monetary retention that is contractually due to the Complainant. 5. Undisputed credible testimony and evidence established that the sum of $2,419.60 is the proper balance due and owing to the Complainant from the Respondent. 6. Undisputed credible testimony and evidence established that notwithstanding repeated attempts and billings over a prolonged period of time, said balance remains unpaid. 7. The Respondent‘s failure to pay the aforementioned sum of $2,419.60 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 provisions of the state’s contracting Laws. 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. Undisputed 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 that on the effective date of the Registrar’s Order, the Respondent’s License be revoked unless the Registrar of Contractors receives and accepts written proof that the Respondent has paid the sum of $2,419.60 to the Complainant. It is further recommended that if Respondent pays above described sum of money to the Complainant, 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, 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