ALJDEC decisions subject to certification as final

2011A-5360-ROC · Registrar of Contractors · 2012-05-08

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: April 25, 2012, at 8:00 a.m. APPEARANCES: Complainant appeared through its authorized representative, Cindy Belisle. Respondent appeared through its authorized representative, Albert Sandella Jr. ADMINISTRATIVE LAW JUDGE: M. Douglas _____________________________________________________________________ FINDINGS OF FACT

1. Sandella Custom Homes LLC is the holder of License No. KB 1.240512-D issued by the Registrar of Contractors. 2. There was no dispute that pursuant to a credit agreement, Complainant provided Respondent with new kitchen appliances for installation in a residence located at 9441 N. 82nd street, Scottsdale, Arizona. 3. There was no dispute that in connection with Respondent’s operations as a licensed contractor, Respondent installed the new appliances in the residence at issue. 4. When Respondent failed to pay Complainant for the new appliances in accordance with its payment agreement, Complainant filed a civil action against Respondent and on January 10, 2012, obtained a Default Judgment in Case No. CC2011-172996RC against Respondent in the total sum of $10,925.21. 5. Credible testimony and evidence established the sum of $8,265.21 is the proper balance due and owing to Complainant from Respondent as of April 25, 2012. 6. There was no dispute that notwithstanding repeated attempts and billings over a prolonged period of time, said balance $8,265.21 remains unpaid. 7. Respondent‘s failure to pay the aforementioned sum of $8,265.21 to Complainant is not found to be in good faith, and accordingly, under all of the facts and circumstances presented herein, Respondent’s conduct is found to constitute a violation of the charged provisions of the 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 Respondent’s operations as a contractor). 8. Administrative notice is taken of Respondent’s prior License record as reflected on the Registrar of Contractors’ public website on April 25, 2012. Such prior License record reflects that License No. KB-1.240512-D of Sandella Custom Homes LLC is current and in good standing. CONCLUSIONS OF LAW 1. The burden of proof at an administrative hearing falls to the party asserting a claim, right, or entitlement, and the standard of proof on all issues in this matter is by a preponderance of the evidence. See A.A.C. R2-19-119. 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 (6th ed. 1990). 3. Credible testimony and evidence supported findings which establish that 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 Respondent’s operations as a contractor). RECOMMENDED ORDER In view of the foregoing, it is recommended that commencing on the effective date of the Registrar’s Order, License No. KB-1.240512-D of Sandella Custom Homes LLC be suspended until the Registrar of Contractors receives, and accepts, written proof that Respondent has paid the sum of $8,265.21 by certified funds to Complainant. It is further recommended that if Respondent provides acceptable written proof that is has fully paid Complainant by certified funds the above described sum of money, on or before the effective date of the Registrar’s Order, then the aforementioned indefinite license suspension 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, May 8, 2012.

/s/ M. Douglas Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors

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Office of Administrative Hearings 1400 West Washington, Suite 101 Phoenix, Arizona 85007 (602) 542-9826