ALJDEC decisions subject to certification as final

2011A-6255-ROC · Registrar of Contractors · 2012-03-14

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: March 14, 2012, at 8:00 a.m. APPEARANCES: The Complainant appeared through its authorized representative, David Domres. The Respondent appeared through its authorized representative, Suzanne Dittman. 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 License No. B.236607-R issued by the Registrar of Contractors. 2. Credible testimony and evidence established that pursuant to the terms of the parties’ construction agreement, the `Complainant provided labor and materials for the construction of a house pad, a guest house pad, a pool pad, and graded a driveway for a residential construction project wherein the Respondent was acting in the capacity of a general contractor. 3. Credible testimony and evidence established that the Complainant fully completed all of the specified construction work set forth in the parties’ construction agreement. 4. Credible testimony and evidence established that the Complainant’s construction work complied with all applicable workmanship and industry standards and was in conformance with the terms of the parties’ construction agreement. 5. Undisputed credible testimony and evidence established that the sum of $18,566.80 is the proper balance due and owing to the Complainant from the Respondent. 6. Undisputed credible testimony and evidence established that notwithstanding repeated attempts and billings over a prolonged period of time, said balance of $18,566.80 remains unpaid. 7. The Respondent asserted that it had failed to pay the Complainant for the Complainant’s completed construction work based upon the property owner’s alleged failure to fully pay the Respondent for the construction project at issue. 8. Credible testimony and evidence established that the Respondent’s obligation to pay the Complainant for the construction work at issue is not contingent upon the Respondent’s being paid in full by the property owner. 9. The Respondent‘s failure to pay the aforementioned sum of $18,566.80 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 applicable charged provision of the state’s contracting laws. 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 or services rendered in connection with the licensee’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, the Respondent’s License be suspended until the Registrar receives and accepts written proof that the Respondent has paid the sum of $18,566.80 to the Complainant. It is further recommended that if the Respondent provides acceptable proof that it has paid the above described sum of money to the Complainant, 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, March 14, 2012.

/s/ M. Douglas Administrative Law Judge

Originally transmitted electronically on March 15, 2012, to:

William A. Mundell, Director Registrar of Contractors

Resubmitted electronically with corrections on March 19, 2012

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