ALJDEC decisions subject to certification as final

2011A-4416-ROC · Registrar of Contractors · 2012-01-13

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: January 13, 2012, at 8:00 a.m. APPEARANCES: The Complainant appeared through its attorney, Richard Murphy. The Respondent appeared through its authorized representative, Emilio Marcelo. 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 K-9 (No. 184096) License was suspended by the Registrar of Contractors for lack of bond on November 11, 2011. 2. There was no dispute that the Complainant provided $29,031.45 worth of construction materials to the Respondent for the Respondent’s use in its contracting business. 3. Undisputed credible testimony and evidence established that on June 3, 2011, the Complainant obtained a civil court judgment against the Respondent in Pima County Superior Court (Case No. C20111379) in the sum of $29,031.45 plus costs and attorney’s fees. 4. Undisputed credible testimony and evidence established that the Complainant has been able to obtain a portion of the civil judgment by executing writs of garnishments against the Respondent’s bank account. 5. Credible testimony and evidence established that the sum of $18,372.68 plus costs and attorney’s fees is the current balance due and owing to the Complainant from the Respondent. 6. Credible testimony and evidence established that the Respondent received sufficient monies as payment for the particular construction operations for which the construction materials were obtained from the Complainant to pay the Complainant in full for the furnished construction materials. 7. Credible testimony and evidence established that notwithstanding repeated attempts and billings over a prolonged period of time, said balance of $18,372.68 remains unpaid and that the civil judgment against the Respondent remains unsatisfied. 8. The Respondent‘s failure to pay the aforementioned sum of $18,372.68 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 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 rendered in connection with the licensee’s operations as a contractor). 9. 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. 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 rendered in connection with the licensee’s operations as a contractor). RECOMMENDED ORDER In view of the foregoing, it is that the be revoked on the effective date of the Registrar’s Order unless the Registrar of Contractors receives and accepts written proof that Respondent has paid the sum of $18,372.68 to the Complainant. It is further recommended that if the Respondent provides satisfactory proof to the Registrar of Contractors that the Respondent has paid the Complainant the sum of $18,372.68, on or before the effective date of this Order, then the above provided 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, January 13, 2012.

/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