ALJDEC decisions subject to certification as final

2011A-2878-ROC · Registrar of Contractors · 2011-12-01

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: November 17, 2011 at 8:00 a.m. APPEARANCES: The Complainant appeared on his own behalf. The Respondent appeared through its attorney, Paul A. Loucks. 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 C-62 (No. 198961) License was suspended by the Registrar of Contractors on January 1, 2011, for non-renewal. 2. The Respondent also holds a Class C-37 R (No. 241027) License, a Class C- (No. 256206) License, a Class B-3 (No. 274296) License, and a Class K- (No. 263500) License issued by the Registrar of Contractors. 3. The Respondent is a non-profit corporation which provides utility and rental assistance, employment and training programs, prevention and intervention programs for youths, food boxes, food certificates, Christmas trees, toys, basic need services, housing and weatherization services in the Tucson area. 4. The Complainant is the chief operating officer of a general contracting company which had previously performed weatherization work for the Respondent. 5. Credible testimony and evidence established that the parties’ business relationship was not a satisfactory one and only lasted a relatively short period of time. 6. Credible testimony and evidence established that the Complainant originally filed an anonymous complaint with the Registrar of Contractors, and on January 10, 2011, the Registrar of Contractors issued a letter stating that it had investigated the Respondent for working beyond the scope of its licenses and issued the Respondent a warning letter for working out of scope. 7. Credible testimony and evidence established that the Respondent and other similar non-profit organizations had performed weatherization work without a required contractor’s license prior to the issuance of the warning letter issued by the Registrar of Contractors. 8. On May 12, 2011, the Complainant filed a formal complaint against the Respondent with the Registrar of Contractors. 9. On August 3, 2011, the Registrar of Contractors issued a formal Citation and Complainant charging the Respondent with possible violations of A.R.S. § 32-1154 (A) (17) and A.R.S. § 32-1154 (A) (18). 10. There was no dispute that the Respondent obtained its Class B-3 (No. 274296) License on September 9, 2011. 11. Credible testimony and evidence established that the Respondent obtained its Class B-3 (No. 274296) License in response to the warning letter and the Citation and Complaint issued by the Registrar of Contractors. 12. Credible testimony and evidence established that the Respondent started its application for its Class B-3 (No. 274296) License as soon as practicable after it received the warning letter from the Registrar of Contractors. 13. Credible testimony and evidence established that the B-3 License obtained by the Respondent was the class of contactor’s license recommended by the Registrar of Contractors for the Respondent’s weatherization program. 14. The credible evidence of record is insufficient and fails to support a finding that the Respondent knowingly contracted beyond the scope of the contractors licenses held by the Respondent. 15. The credible evidence of record is insufficient and fails to support a finding that the Respondent contracted or offered to contract with the Respondent’s Class C-62 (No. 198961) License while the license was under suspension in this matter. 16. Notice is taken of the Respondent’s prior license records 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. The Complainant failed to sustain his burden of proof to establish that Respondent violated the applicable charged sections of the state’s contracting laws. Therefore, the credible testimony and evidence of record did not sufficiently sustain a finding of violations by the Respondent of the charged provisions of A.R.S. § 32-1154 (A) (17) (knowingly contracting beyond the scope of the license or licenses of the licensee), and A.R.S. § 32-1154 (A) (18) (contracting or offering to contract or submitting a bid while the license is under suspension or while the license is on inactive status) as charged in the Citation a issue. RECOMMENDed order In view of the foregoing, it is recommended that this matter be dismissed. 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, December 1, 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