ALJDEC decisions subject to certification as final

2011A-732-ROC · Registrar of Contractors · 2011-09-29

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: September 29, 2011, at 1:00 p.m. APPEARANCES: The Complainant, Carol Melton Callison dba Callison Construction Company, appeared on her own behalf. The Respondent, Vito Frederick Austin dba Vito’s Construction (Indiv), appeared on his own behalf. 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. Vito Frederick Austin dba VITO'S CONSTRUCTION (hereinafter referred to as VITO) is the holder of a Class KB-2 (No. 262839) License issued by the Registrar of Contractors. 2. This is a matter where VITO performed construction work as a subcontractor on a commercial project where Carol Melton Callison dba CALLISON CONSTRUCTION COMPANY (hereinafter referred to as CALLISON) was acting in the capacity of a general contractor. 3. Credible testimony and evidence established that CALLISON terminated VITO from the construction site and refused to pay VITO. 4. VITO then filed a formal complaint (Case No. 2011-532) against CALLISON with the Registrar of Contractors seeking money that was allegedly owed to VITO by CALLISON. 5. CALLISON then filed the complaint at issue against VITO. 6. On July 26, 2011, the Registrar issued an Order in Case No. 2011-532 which provided that CALLISON’s contractor’s license be suspended until CALLISON pays the sum of $6,000.00 to VITO. 7. Credible testimony and evidence established that the monetary dispute between the parties was fully resolved in Case No. 2011-532 (Docket No. 2011A-532-ROC) and that all matters presented in that case have been addressed by the Registrar and are now res judicata and can not be reconsidered in this matter.. 8. After CALLISON requested that this matter receive an administrative hearing, the Registrar of Contractors issued a formal Complaint and Citation against VITO’s license alleging that VITO may have violated the charged provisions of A.R.S. § 32-1154 (A) (1) (abandonment or refusal to perform without legal excuse). 9. Undisputed credible testimony and evidence established that CALLISON terminated VITO from the construction site and then retained an alternative contractor to finish the construction project. 10. Credible testimony and evidence established that after the termination, VITO was not allowed back on the construction project. 11. There was no credible evidence that VITO abandoned or refused to perform the construction project without legal excuse for the abandonment or refusal to perform. CONCLUSIONS OF LAW 1. CALLISON has the burden of demonstrating by a preponderance of the evidence that VITO 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). 3. Proof by preponderance of the evidence “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). 4. CALLISON failed to sustain her burden of proof to establish that VITO violated the violated the charged sections of the state’s contracting laws. Therefore, the credible evidence of record does not sufficiently sustain a finding of a violations by VITO of the provisions of A.R.S. §32- 1154 (A) (1) (abandonment or refusal to perform without legal excuse) as charged in the Citation and Complaint. 5. There being no violation this matter should be dismissed. 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, September 29, 2011.

/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