ALJDEC decisions subject to certification as final

2011A-3981-ROC · Registrar of Contractors · 2011-11-09

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: November 9, 2011, at 1:00 p.m. APPEARANCES: The Complainant appeared on her own behalf. 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 B-3 (No. 233730) License was suspended on for non- renewal on August 1, 2011. 2. This is a residential matter where the parties entered into a construction agreement whereby the Respondent agreed to install new canvas awnings on the Complainant’s residence utilizing the Complainant’s existing frames for the total sum of $1,102.66. 3. Undisputed credible testimony and evidence established that the Complainant paid the Respondent the sum of $551.33 as a down payment for the agreed upon construction work. 4. Undisputed credible testimony and evidence established that the Respondent then removed the existing awning frames from the Complainant’s residence and delivered them to the canvas awning manufacturer for installation of the new canvas awnings. 5. Undisputed credible testimony and evidence established that the Respondent then abandoned the construction project keeping the Complainant’s down payment and leaving the frames for the Complainant’s canvas awnings with the canvas awning manufacturer. 6. The Complainant was very upset with the Respondent’s abandonment of her construction project and tracked the Respondent down and demanded the return of her money and her canvas awning frames. 7. Credible testimony and evidence established that the Respondent repeatedly agreed to return the Complainant’s money and materials to her and then repeatedly failed to follow through with the Respondent’s promises. 8. Undisputed credible testimony and evidence established that after the Complainant filed a formal complaint with the Registrar of Contractors, the Respondent gave the Complainant a check for $550.00. 9. There was no dispute that after repeated attempts, the Complainant was finally able to cash the Respondent’s check. 10. Undisputed credible testimony and evidence established that the manufacturer of the canvas awnings did not know who the canvas frames belonged to and that when the Respondent failed to return to the manufacturer’s place of business, the manufacturer disposed of the Complainant’s canvas awning frames. 11. Undisputed credible testimony and evidence established that the Complainant must now replace all of the canvas awning frames as well the canvas for the awnings. 12. Credible testimony and evidence established that the cost of replacing the Complainant’s awning frames and canvas will exceed $1, 500.00. 13. Undisputed credible testimony and evidence established that the Respondent abandoned the Complainant’s construction project without legal excuse to do so. 14. 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). 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. Undisputed credible testimony and evidence supported findings which establish that the Respondent violated the charged provisions of A.R.S. § 32-1154 (A) (1) (abandonment). RECOMMENDed order In view of the foregoing, it is recommended that the Respondent’s License be revoked on the effective day of the Registrar’s Order. 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, November 9, 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