ALJDEC

01F-2355-ROC · Registrar of Contractors · 2001-12-17

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING December 17, 2001 APPEARANCES: Mike Eavenson for the Complainant; Respondent did not appear at the hearing. ADMINISTRATIVE LAW JUDGE: Lewis D. Kowal

FINDINGS OF FACT 1. On November 17, 2000, Mike Eavenson, the owner of Eavenson Electric, a sole proprietorship (Complainant), entered into a contract with KCI Development (Respondent) to perform electrical work at a new Kinko’s store located at 20th Street and Camelback in Phoenix, Arizona (Kinko’s) for the sum of $33,762.00. Respondent was the general contractor on the Kinko’s job. 2. Mr. Eavenson testified that the Respondent was to pay Complainant one half of the above-mentioned contract price after the electrical rough-in was completed and the balance was to be paid within thirty days of completion of the job. 3. While Complainant was performing the above-mentioned work, written change orders were executed by Respondent for Complainant to perform additional work at the jobsite for an additional charge of $10,464.26. 4. Mr. Eavenson testified that Complainant performed all of the work required under the above-mentioned contract and all executed change orders but has not received any payment from Respondent, despite having requested such payment. 5. As a result of Complainant not receiving payment from Respondent, Complainant could not pay its supplier, resulting in the supplier filing a lien against the Kinko’s property. 6. Subsequent to the filing of the above-mentioned lien, Kinko’s paid the supplier the sum of $8,811.20, which sum Complainant had incurred that was considered part of the initial cost of performance on the Kinko’s job. During the hearing, Mr. Eavenson represented that the $8,811.20 should be deducted from the total contract price of $44,226.26. 7. Mr. Eavenson testified that he liened the above-mentioned Kinko’s property in the amount of $2,000.00 and missed the deadline for filing a lien for the remaining balance owed to him. Subsequently, Kinko’s paid him $2,000.00 to release the lien. During the hearing, Mr. Eavenson represented that the $2,000.00 he received from Kinko’s should be deducted from the total amount Respondent owes him for the above-mentioned job. 8. Mr. Eavenson’s testimony, as set forth above, is determined to be credible. 9. Respondent did not present any evidence to refute or rebut the evidence presented by Complainant. 10. Administrative notice is taken of the Registrar of Contractor’s (Registrar) licensing records of the Respondent which reveals that since January 1, 2001, Respondent’s license has been suspended for lack of renewal and the license was suspended on May 6, 2001, for lack of a qualifying party. Additionally, the license was suspended on October 17, 2001 by a disciplinary order issued in Case Number 01-2315. Such suspensions do not preclude this tribunal from conducting this administrative proceeding nor from issuing a disciplinary order. Little, if any, motivation . . . would exist for any respondent contractor to perform additional action, in order to avoid discipline against a license that is already suspended. CONCLUSIONS OF LAW 1. The evidence of record established that Respondent has violated the provisions of A.R.S. §32-1154(A)(7) and (11). The evidence of record does not establish that Respondent violated the provisions of A.R.S. §32- 1154(A)(3) or A.A.C. R4-9-108. 2. The instant matter is an administrative disciplinary proceeding relating to a contractor’s license. The Registrar’s role in this matter is not one of a collection agency or judicial tribunal but merely one duty- bound to determine whether a violation of this State’s contracting laws has occurred and, if so, to impose a proper disciplinary sanction. Neither the filing of a complaint with the Registrar, nor a demonstration that a contractor violated state law, vests in a complainant the right to receive any particular individualized relief or an order imposing any particular discipline. RECOMMENDED ORDER Based on the above, it is recommended that on the effective date of the Order entered in this matter Respondent’s Class B-01 license shall be revoked. Done this day, January 3, 2002.

______________________________________ Lewis D. Kowal Administrative Law Judge

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

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

By ___________________________ -----------------------

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