ALJDEC decisions subject to certification as final

2012A-81-ROC · Registrar of Contractors · 2012-05-16

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: May 15, 2012, at 1:00 p.m. APPEARANCES: Complainant appeared through its authorized representative, Robert Bachani. Respondent failed to appear. 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. Respondent is the holder of License No. K-9.216201-D issued by the Registrar of Contractors. 2. Undisputed credible testimony and evidence established that pursuant to a long standing purchase agreement, Complainant provided construction materials to Respondent for several construction projects wherein Respondent was acting in the capacity of a licensed contractor. 3. The weight of the credible evidence of record was sufficient to support a finding that the sum of $2,242.18 is the proper balance due and owing to Complainant from Respondent. 4. There was no dispute that notwithstanding repeated attempts and billings over a prolonged period of time, said balance of $2,242.14 remains unpaid. 5. Respondent acknowledged the undisputed debt to Complainant and entered into a settlement agreement wherein Respondent agreed to make payments of $100.00 per week until the entire sum was paid off. 6. There was no dispute that the one check that Respondent presented pursuant to the parties’ settlement agreement was returned for insufficient funds. 7. Respondent failure to pay the aforementioned undisputed sum of $2,242.14 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 provision of A.R.S. § 32-1154(A)(11) (failure to pay monies in excess of seven hundred fifty dollars when due). 8. Administrative notice is taken of Respondent’s prior License record as reflected on the Registrar of Contractors’ public website on May 15, 2012. Such prior License record reflects that on May 15, 2012, License No. K-9.216201-D of J and S Commercial Concrete Contractors, Inc was suspended by the Registrar of Contractors until compliance. 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). 3. Undisputed credible testimony and evidence supported findings 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). RECOMMENDED ORDER In view of the foregoing, it is recommended that License No. K- 9.216201-D of J and S Commercial Concrete Contractors, Inc be revoked on effective date of the Registrar’s Order unless the Registrar of Contractors receives and accepts written proof that Respondent has paid the sum of $2,242.14 to Complainant. It is further recommended that if Respondent pays the above described sum of money on or before the effective date of the Registrar’s Order, then the aforementioned license revocation 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 15, 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