ALJDEC

98F-2576-ROC · Registrar of Contractors · 1998-09-08

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: September 8, 1998. APPEARANCES: Karen Manard appeared representing Roofing Wholesale, Inc., Complainant. Atop Flite Roofing Co., Respondent and holder of class L-42 license number 111271, failed to appear.

ADMINISTRATIVE LAW JUDGE: Kip M. Micuda _____________________________________________________________________ The hearing in this matter was held for the purpose of determining whether Respondent violated state law as alleged by Complainant and as cited by the Registrar of Contractors (“Registrar”). Evidence and testimony were presented and, based upon the entire record, the following Findings of Fact, Conclusions of Law, and Recommended Decision are made:

FINDINGS OF FACT 1. Karen Manard is an authorized employee of Roofing Wholesale, Inc., Complainant, who appeared on behalf of Complainant. 2. Atop Flite Roofing Co., Respondent, is holder of class L-42 license number 111271. Respondent failed to appear at the hearing in this matter after fair was mailed to the parties. 3. This matter arises out of a settlement agreement between the parties. The agreement calls for Respondent to pay Complainant the sum of $2,928.00, over a three month period. The preponderance of the record confirms that Respondent has paid $2,000.00 of the sum owed. The sum of $928.00 remains due. The preponderance of the record reveals no legal justification for Respondent’s failure to pay the sum remaining due.

APPLICABLE LAW Arizona Revised Statutes (“A.R.S.”) §32-1154A provides, in relevant portions, that a holder of a license or a person listed on a license shall not commit the following: 7. The doing of a wrongful or fraudulent act by the licensee as a contractor resulting in another person being substantially injured. xxx 11. Failure by a licensee or agent of a licensee to pay monies in excess of seven hundred fifty dollars when due . . . . xxx 23. Failure to take corrective action to comply with this chapter or with rules adopted pursuant to this chapter without valid justification within a reasonable period of time after receiving written directive from the Registrar.

CONCLUSIONS OF LAW 1. To warrant action by the Registrar pursuant to the statutes above, Complainant must demonstrate by a preponderance of the evidence that Respondent violated any one of the statutes. Culpepper v. State of Arizona, 187 Ariz. 431, 437-38, 930 P.2d 508 (Ariz. App. 1996). Proof by “preponderance of the evidence” means that the evidence 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). 2. Complainant fails its burden of demonstrating any fraudulent conduct on the part of Respondent. 3. With respect to Respondent’s alleged wrongful conduct and failure to pay monies in excess of seven hundred fifty dollars ($750.00), Complainant sustains its burden of demonstrating violations. Complainant demonstrates sufficient evidence that Respondent’s failure to pay, in performance of its obligations pursuant to the agreement between the parties, constitutes violations of §§32-1154A(7) and A(11). 4. With respect to Respondent’s alleged failure to take corrective action, Complainant again sustains its burden of proof. Respondent’s failure to pay constitutes a violation of §32-1154(23).

RECOMMENDED DECISION In view of the foregoing, it is recommended commencing on the effective date of the final order of the Registrar in this matter, that Respondent ’s Class L-42 license, number 111271, be indefinitely suspended. It is further recommended that Respondent have an opportunity to avoid suspension of its license. If, by the final order’s effective date, Respondent tenders to Complainant the sum of $928.00, then the above- provided license suspension shall not take place and Citation No. 98-2576 shall be closed. Done this day, September 8, 1998.

_________________________________ Kip M. Micuda Administrative Law Judge

Original transmitted by mail this ____ day of ____________, 1998, to:

Michael P. Goldwater, Director Registrar of Contractors ATTN: Joyce Armijo 800 West Washington, 6th Floor Phoenix, AZ 85007

By _______________________________

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Office of Administrative Hearings 1700 West Washington, Suite 602 Phoenix, Arizona 85007 (602) 542-9826