ALJDEC decisions subject to certification as final

2011A-6383-ROC · Registrar of Contractors · 2012-03-27

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: March 16, 2012, at 8:00 a.m. APPEARANCES: The Complainant appeared through its authorized representative, Mario Flores. The Respondent appeared through its attorney, Paul Sala, Esq., Allen, Sala & Bain PLC . 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. Creative Paving Solutions LLC (“Respondent”) is the holder of License No.K-69.155125-D issued by the Registrar of Contractors. 2. The Respondent’s construction assets have been seized by a lending institution and the Respondent is unable to engage in contracting work at this time. 3. The Complainant’s personal representative is a former employee of the Respondent. 4. The Complainant and the Complainant’s personal representative are Plaintiffs in an ongoing civil action (Exhibit No. R-1) against the Respondent for alleged unpaid back wages and financial damages. 5. On November 9, 2011, the Complainant filed a formal complaint with the Registrar of Contractors against the Respondent alleging that the Respondent had advertised and contracted without a valid license and used another contractor’s license number. 6. When the parties were unable to resolve their differences, the Complainant filed a request for an administrative hearing on December 5, 2011. 7. A formal Citation and Complaint was then issued notifying the Respondent of possible violations of A.R.S. § 32-1154(A)(13), namely, A.R.S. § 32- 1124(B) (display of license), A.R.S. § 32-1154(A)(15) (acting in the capacity of a contractor under any license issued under this chapter in a name other than as set forth upon the license), and A.R.S. § 32- 1154(A)(18) (contracting or offering to contract or submitting a bid while the license is under suspension or while the license is on inactive status). 8. There was no dispute that the Respondent’s License was suspended for lack of bond from July 11, 2011 through January 18, 2012. 9. The credible evidence of record is insufficient and fails to support a finding that the Respondent contracted or offered to contract or submitted a bid while the Respondent’s License was under suspension. 10. There was no credible evidence that the Respondent had failed to properly display its license number as required by A.R.S. § 32-1124(B). 11. A member of the Respondent, Hadar Rahav, is now employed by a third party entity. The fact that one of the Respondent’s members has accepted employment with a third party entity does not constitute acting in the capacity of a contractor under its license in a name other than as set forth upon the Respondent’s license. 12. The credible testimony and evidence of record is insufficient and fails to support a finding that the Respondent acted in the capacity of a contractor under its license in a name other than as set forth upon its license. 13. Administrative Notice is taken of the Respondent’s prior License record as reflected on the Registrar of Contractors’ public website on March 26, 2012. The License record reflects that License No. K-69.155125-D of Creative Paving Solutions LLC was suspended for lack of bond from July 11, 2011 through January 18, 2012, and that it is now 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 (rev. 6th ed. 1990). 3. The Complainant failed to sustain its burden of proof to establish that the Respondent violated the applicable charged sections of the state’s contracting laws. Therefore, the credible evidence of record failed to sufficiently sustain a finding of violations by the Respondent of the charged provisions of A.R.S. § 32-1154(A)(13), namely, A.R.S. § 32- 1124(B) (display of license), A.R.S. § 32-1154 (A)(15) (acting in the capacity of a contractor under any license issued under this chapter in a name other than as set forth upon the license), and A.R.S. § 32-1154 (A)(18) (contracting or offering to contract or submitting a bid while the license is under suspension or while the license is on inactive status). RECOMMENDed order In view of the foregoing, it is recommended that this matter be dismissed. 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, April 5, 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