ALJDEC

00F-Y0200-ROC · Registrar of Contractors · 2001-03-14

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

|SERGIO’S HOUSE OF CARPET, |§| | | |§|CASE NO.: y00-0200 | |Complainant, |§| | | |§|DOCKET NO.: 00F-Y0200-ROC | |-v- |§| | | |§| | |License No. 060180, Class B of |§|RECOMMENDED | |Ernest Edward Foster, d.b.a. |§|DECISION AND ORDER | |FOSTER CONSTRUCTION COMPANY |§| | |(INDIV), |§| | | |§| | |Respondent. |§| | | |§| | | |§| | | |§| | | |§| |

HEARING: Thursday, March 8th, 2001; 8:45 a.m. APPEARANCES: The complainant was represented by Mr. Oscar Fazz, General Manager. The respondent, Mr. Ernest Edward Foster, represented himself. ADMINISTRATIVE LAW JUDGE: Grant Winston.

The administrative hearing of this matter was held in Yuma, Arizona. Testimony was heard and other evidence admitted to record, and, based on the entire record, the following Findings of Fact, Conclusions of Law and Recommended Order are made. FINDINGS OF FACT 1. Respondent is, and during all times material hereto was, a contractor licensed by and doing business in the State of Arizona, holding Class B License number 060180. 2. The complainant is also a licensed contractor in Arizona, in the business of installing carpets, tile and vinyl floor coverings. 3. The respondent contracted with the complainant for the complainant to install floor coverings in several houses respondent was constructing in the Mesa Del Sol subdivision near Yuma, Arizona. Complainant’s construction of these homes was completed from February to April of 2000. This complaint originally included allegation of respondent’s non-payment for eight of these homes, totaling $43,477.90. Since the filing of the complaint, the respondent has managed to pay the balance owing on three of the homes. 4. At the hearing the complainant’s evidence included testimony and documentary evidence that the respondent owes a remaining balance on the five homes as follows: Lot #1 -- $2,720.28; Lot #11 -- $8,694.68; Lot #31 -- $9,161.22; Lot #28 -- $5,273.69, and Lot #33 -- $5,424.32. These figures total $31,274.19. That is the amount the complainant is now claiming. 5. Not having received payment for the floor coverings it had installed in the Mesa Del Sol Homes, the complainant filed this administrative complaint with the Registrar of Contractors on June 15th, 2000. 6. A Citation and Complaint was issued from the registrar’s office on August 29th, 2000, citing the respondent with possible violations of A.R.S. §32-1154.A.7. and 11. 7. Respondent filed its written answer to the Citation and Complaint on September 5th, 2000. The answer stated that the respondent had “made arrangements with Sergio’s House of Carpet on or about 8-1-00 to make payments on account. Today’s date is 9-1-00.” 8. At the hearing the owner of the respondent, Mr. Ernest Edward Foster, appeared and testified. He testified that he had no dispute with the complainant’s claims. He admitted to owing the complainant the amount of money claimed. Mr. Foster testified that he has been unable to completely pay the contracts with complainant, stating “Sometimes it works out; sometimes it doesn’t.” 9. Mr. Foster testified that the houses in question he constructed for the developer Fortuna Hills, LTD, a partnership, and that Fortuna Hills has paid him for the construction of these houses. 10. Notice is taken of the respondent’s prior license record with the registrar. CONCLUSIONS OF LAW 1. This administrative hearing was held under authority of and pursuant to A.R.S. §32-1156 and A.R.S. §41-1092. 2. The respondent herein is charged with possible violations of A.R.S. §32- 1154.A.7., and 11. 3. A.R.S. §32-1154.A.11. prohibits a licensed contractor from failing to pay monies in excess of $750.00 when due for materials or services rendered in connection with his operations as a contractor when he has the capacity to pay or, lacking such capacity, when he has received sufficient monies in payment for the particular construction work project for which the materials or services were rendered. 4. The undisputed evidence is that the respondent owes the complainant $31,274.19 for complainant’s installation of its floor covering in five houses built and sold by the respondent, respondent has sold and been paid for those houses, and that this payment to complainant is long overdue. Respondent has violated A.R.S. §32-1154.A.11. 5. A.R.S. §32-1154.A.7, prohibits a licensed contractor from engaging in any wrongful or fraudulent activity as a contractor which results in another person being substantially injured. There is no evidence of fraud by the respondent, and no evidence of any wrongful act resulting in another person being substantially injured other than the violation of A.R.S. §32-1154.A.11 already concluded. RECOMMENDED ORDER In view of the foregoing, it is recommended that the Respondent’s Class B License number 060180 shall be suspended until the Registrar of Contractors receives proof that the respondent has paid the complainant $31,274.19. It is further recommended that if the registrar does receives such proof of payment on or before the effective date of this order then the above provided license suspension shall not take place, and Citation No. Y00-0200 shall be closed. Done this day, March 20th, 2001.

________________________________ GRANT WINSTON Administrative Law Judge

Original transmitted by mail this ____ day of March, 2001, to:

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

By _______________________________ -----------------------

Office of Administrative Hearings 100 N. Stone Ave., Suite 704 Tucson, Arizona 85701 (520) 628-5488