ALJDEC

00F-F0278-ROC · Registrar of Contractors · 2000-08-16

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: August 10, 2000 (Flagstaff, Arizona)

APPEARANCES: Greg Hancock, Manager, appeared on behalf of Complainant; no authorized representative of Respondent appeared.

ADMINISTRATIVE LAW JUDGE: Eric A. Bryant _____________________________________________________________________

Complainant Banker Insulation of Northern Arizona, Inc. brings this action to force Respondent Hicks Construction Co. to pay for subcontracted work done by Complainant. As noted above, no representative appeared at the hearing on behalf of Respondent. This case was set for hearing at 8:30 a.m. on August 10, 2000, in Flagstaff, Arizona. Two days before the hearing, August 8, 2000, Respondent’s counsel Lamonte Hansen filed a Motion to Continue. The Motion stated that Respondent’s counsel had a family emergency and needed to be in Wisconsin on August 10 through August 20. Complainant had been contacted and agreed to a continuance only if another hearing date in August could be set. Because this Administrative Law Judge was already in Flagstaff holding hearings, the information was relayed to him over the telephone by OAH staff. This ALJ instructed staff to contact the parties and tell them that the motion was denied. When staff contacted Respondent’s counsel with the denial, Respondent’s counsel told staff that he had already bought airline tickets to go to Wisconsin and also that he had a Yavapai Superior Court hearing at 8:30 a.m. on August 10, 2000. On August 9, 2000, Respondent’s counsel filed another Motion to Continue, this time stating that he had a Superior Court matter and also stating that Respondent’s Qualifying Party, Dailey Hicks had passed away and that the company no longer exists and no longer was licensed. This ALJ again declined to continue the hearing. The motions were denied because of their lateness, because another hearing date in August was not available, and because of the inconsistent reasons given by counsel. The parties were given notice of the hearing date by Notice of Hearing dated July 7, 2000. Counsel had not made an appearance at that time, so it is unknown when counsel was retained. If counsel took this case knowing that he had a conflict with the hearing date, either because of a trip or a court hearing, then counsel created the conflict and foolishly took a chance that a continuance would not be granted. Furthermore, counsel provided no details about the “family emergency” or the superior court proceeding. Simply put, counsel did not provide information sufficient to show good cause to continue the hearing, as is required for continuance by A.R.S. § 41-1092.05(C) and the Rules of the Office of Administrative Hearings, Arizona Administrative Code (A.A.C.) R2-19-110. Because Respondent did not appear, Complainants’ evidence is uncontested. Having considered Complainants’ evidence and testimony presented at the hearing and, based upon the entire record, the Administrative Law Judge makes the following Findings of Fact, Conclusions of Law, and Recommended Order finding Respondent in violation of the statutes and recommending provisional revocation. FINDINGS OF FACT 1. In August 1999, Complainant performed insulation installation work as a subcontractor for Respondent on a house in Flagstaff, Arizona. Payment of $1878.00 was due within 30 days of the completion of the work. 2. At the hearing, Greg Hancock, Complainant’s Manager, testified that the work was satisfactorily completed and Complainant has never been paid. According to correspondence in the ROC file from one of Respondent’s corporate officers, Respondent never received the final draw on the house. Hancock testified that insulation installation occurs much earlier in the construction process (obviously before drywall is installed) and is not covered by the final draw. Therefore, Respondent received payment for the insulation work. He also testified that he talked to the homeowner, who is living in the house and stated that he has no complaint about the insulation work.

CONCLUSIONS OF LAW 1. Complainant bears the burden of showing, by a preponderance of the evidence, that Respondent has violated the statutes cited in the Citation and Complaint. Culpepper v. State, 187 Ariz. 431, 437, 930 P.2d 508, 514 (Ct. App. 1996). Complainant has met that burden. 2. The evidence is sufficient to show that Respondent has violated A.R.S. § 36-1154(A)(11), failure to pay an amount greater than $750.00 when due for services in connection with a licensee’s operation as a contractor. Complainant has shown that Respondent has received funds for the particular work that Complainant performed. 3. A review of current ROC records shows that Respondent’s license was suspended for failure to renew in March 2000. Pursuant to A.R.S. § 32- 1154(C), that action does not deprive the ROC or this tribunal of jurisdiction and does not render the Registrar powerless to revoke the license. Even if the record showed that Respondent’s Qualifying Party was deceased or that Respondent is defunct, it would not prevent the ROC from adjudicating this complaint. 4. Appropriate discipline in this case is to require Respondent to pay Complainant $1878.00 or face revocation of its license.

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. . . RECOMMENDED ORDER IT IS RECOMMENDED that Respondent’s Class B license 056086 be revoked beginning on the effective date of the Registrar’s Order in this matter until Respondent has paid Complainant $1878.00. IT IS FURTHER RECOMMENDED that if Respondent pays Complainant $1878.00 before the effective date of the Registrar’s Order, the license revocation shall not take place and Citation and Complaint F00-0278 shall be closed.

Done this 16th day of August 2000.

OFFICE OF ADMINISTRATIVE HEARINGS

______________________________________ Eric A. Bryant Administrative Law Judge

Original mailed this ___ day of August 2000, to:

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

By ___________________________

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