ALJDEC decisions subject to certification as final

2011A-4840-ROC · Registrar of Contractors · 2012-01-24

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: January 24, 2012, at 1:00 p.m. APPEARANCES: The Complainant appeared through its attorney, Edward Rubacha. The Respondents failed to appear. ADMINISTRATIVE LAW JUDGE: M. Douglas

Evidence and testimony were presented and the following Findings of Fact, Conclusions of Law and Recommended Orders are made: FINDINGS OF FACT 1. Respondent Qualified Electrical Contractors LLC is the holder of a Class A-17 (No. 256091) issued by the Registrar of Contractors. 2. Respondent Qualified Electrical LLC is the holder of a Class K-11 (No. 193462) License issued by the Registrar of Contractors. 3. Undisputed credible testimony and evidence established that the Complainant entered into a written agreement with the Respondents for the performance of construction work on a public work project identified as the Avra Valley Well Project. 4. Undisputed credible testimony and evidence established that the parties agreed that the Complainant was to pay the Respondents the total sum of $62,750.00 for the agreed upon construction work including all labor and material costs. 5. Undisputed credible testimony and evidence established that during the course of construction the Complainant paid the Respondents the total sum of $59,612.50 for labor and materials in accordance with the terms of the parties’ written construction agreement. 6. Undisputed credible testimony and evidence established that Border States Electric Supply provided electrical materials to the Respondents for the construction project at issue. 7. Undisputed credible testimony and evidence established that Border States Electrical Supply notified the Complainant that the Respondents had failed to pay Border States Electrical Supply the total sum of $48,136.27 for materials supplied to the Respondents and utilized on the construction project at issue. 8. Undisputed credible testimony and evidence established that the Complainant repeatedly contacted the Respondents about the unpaid balance claimed by Border States Electrical Supply and that the Respondents repeatedly promised to resolve the problem and pay Border States Electrical Supply. 9. Undisputed credible testimony and evidence established that the Respondents failed to pay Border States Electrical Supply and that Border States Electrical Supply then instituted legal action against the Complainant (Pima County Superior Court Case No. C20116816) to collect the $48,136.27 owed to it for the construction material supplied to the Respondents for the construction project at issue. 10. Undisputed credible testimony and evidence established that the Complainant then entered into a Settlement Agreement with Border States Electrical Supply pursuant to which the Complainant paid Border States Electrical Supply the total sum of $42,000.00 to resolve the legal action instituted by Border States Electrical Supply. 11. Undisputed credible testimony and evidence established that the Complainant had paid the Respondents 95% of the contractual amount due to the Respondents for the construction project at issue and that the Respondents had enough money in Respondents’ bank account to pay the claim of Border States Electrical Supply when the claim was presented. 12. Undisputed credible testimony and evidence established that the Respondents had repeatedly informed the Complainant that the Respondents would properly resolve the matter with Border States Electrical Supply before any legal action could be taken. 13. Undisputed credible testimony and evidence established that Border States Electrical Supply assigned its rights for payment and causes of action against the Respondents to the Complainant as part of the Settlement Agreement in the civil action between Border States Electrical Supply and the Complainant. 14. Undisputed credible testimony and evidence established that the sum of $42,000.00 is the proper balance due and owing to the Complainant from the Respondents. 15. Undisputed credible testimony and evidence established that notwithstanding repeated attempts and billings over a prolonged period of time said balance of $42,000.00 remains unpaid. 16. The Respondents’ failure to pay the aforementioned sum of $42,000.00 to the Complainant is not found to be in good faith and accordingly, under all of the facts and circumstances presented herein the Respondents’ conduct is found to constitute a violation of the charged provisions of A.R.S. § 32-11254 (A) (11) (failure to pay monies in excess of seven hundred fifty dollars when due for materials rendered in connection with the Respondents’ operations as contractors).

CONCLUSIONS OF LAW 1. The Complainant has the burden of demonstrating by a preponderance of the evidence that the Respondents 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 Respondents 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 Respondents’ operations as contractors). RECOMMENDED ORDERS [Case No. 2011-4860, Docket No. 2011A-4860-ROC] 1. In view of the foregoing, it is recommended that on the Respondent’s Class K-11 (No. 193462) License be revoked on the effective date of the Registrar’s Order unless the Registrar of Contractors receives and accepts written proof that the Respondent has paid the sum of $42,000.00 to the Complainant. [Case No. 2011-5635, Docket No. 2011A-5635-ROC] 2. In view of the foregoing, it is recommended that on the Respondent’s Class A-17 (No. 256091) License be revoked on the effective date of the Registrar’s Order unless the Registrar of Contractors receives and accepts written proof that the Respondent has paid the sum of $42,000.00 to the Complainant. In the event of certification of this Administrative Law Judge Decision by the Director of the Office of Administrative Hearings, the effective date of these Orders will be 40 days from the date of the certification. Done this day, January 24, 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