ALJDEC decisions subject to certification as final

2011A-319-ROC · Registrar of Contractors · 2011-06-01

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: June 1, 2011, at 1:00 p.m. APPEARANCES: The Complainant appeared through its authorized representative, Ronald Pensworth. The Respondent appeared through its attorney, David Wolf. 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 KB-2 (No. 248170) License issued by the Registrar of Contractors. 2. On January 18, 2011, the Complainant filed a formal complaint against the Respondent with the Registrar of Contractors. 3. In the formal complaint, the Complainant alleged that the Respondent had contacted clients of the Complainant and told them that the Complainant was no longer in business and that any check issued for payment should be made out to the Respondent rather than the Complainant. 4. Pursuant to the filing of the formal complaint the Registrar of Contractors issued a Citation and Complaint on March 11, 2011. 5. The Citation and Complaint provides, in pertinent part, as follows: Respondent is advised and notified that the specific provisions of the State’s contracting laws which are charged in the Citation as possibly having been violated by you are as follows: A.R.S. § 32-1154A 7. The doing of a fraudulent act by the licensee as a contractor resulting in another person being substantially injured. 16. False, misleading or deceptive advertising whereby any member of the public may be misled and injured. 6. At the hearing the Complainant produced evidence and testimony in support of its allegations against the Respondent. 7. The Respondent sharply disputed the Complainant’s allegations and produced testimony in support of its assertion that the Respondent had not violated the charged provisions of A.R.S. § 32-1154 (A). 8. The credible testimony and evidence or record is insufficient and fails to support a finding that the Respondent contacted clients of the Complainant and requested that checks for payment should be mailed to the Respondent rather than the Complainant. 9. The credible testimony and evidence of record is insufficient and fails to support a finding that the Respondent committed a fraudulent act. 10. There was no credible testimony of any false, misleading or deceptive advertising by the Respondent. 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. The Complainant failed to sustain its burden of proof to establish that the Respondent violated the applicable charged sections of the state’s contracting laws. Therefore, the credible evidence of record did not sufficiently sustain a finding of violations by the Respondent of the provisions of A.R.S. § 32-1154 (A) (7) (Fraud) and A.R.S. § 32-1154 (A) (16) (False, misleading or deceptive advertising) as charged in the Citation and Complaint. 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, June 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