ALJDEC

01F-F0123-ROC · Registrar of Contractors · 2001-08-24

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: August 7, 2001 APPEARANCES: Greg Hancock, Complainant’s President, and Troy Lemerond, Production Supervisor, appeared on behalf of Complainant; Respondent was represented by its President and Qualifying Party Brian Harmon. ADMINISTRATIVE LAW JUDGE: Eric A. Bryant _____________________________________________________________________

Complainant Banker Insulation of Northern Arizona brings this “no pay” action against Respondent Harmon Homes, Inc., claiming that Respondent has wrongfully withheld money owed to Complainant for work done as a subcontractor. The parties presented evidence and testimony 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 suspension of the license if Respondent does not pay. FINDINGS OF FACT 1. Complainant performed insulation subcontracting work for Respondent on a residential project known as “Westwood lot 75” in Flagstaff, Arizona. Complainant billed Respondent after completion of that work, including “extras,” in April and May 2000. (Exhibits 1 and 2.) 2. There was a dispute about the accuracy of the extra charges. At the hearing in this matter, the parties resolved that dispute and agreed that Respondent owes Complainant $3308.00. 3. Respondent has never disputed that Complainant is owed payment for its work. Until the hearing, the parties disputed a small portion of the bill, relating to the extras, but not the bulk of it. Yet, none of the bill has been paid. Respondent’s President and Qualifying Party Brian Harmon testified that he sent a $500.00 check to Complainant in April 2001 in an attempt to begin making payments on the debt, but the check was returned. Harmon stated that he was paid by the owner on Westwood lot 75, but that he did not have the money to pay Complainant. He referenced losses on other projects as the reason he did not have the money. As noted above, he agreed that he owes Complainant $3308.00. CONCLUSIONS OF LAW 1. The burden of proof at an administrative hearing is generally upon a complainant. Utah Construction Company v. Berg et al, 68 Ariz. 285, 205 P.2d 367 (1949). Further, the standard of proof at hearing is by preponderance of the evidence. Smith v. Arizona Dept. of Transportation, 146 Ariz. 430, 706 P.2d 756 (App. 1985). Therefore, 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 its burden. 2. The evidence is sufficient to find a violation of A.R.S. § 36- 1154(A)(7), a wrongful act, because Respondent refused to pay Complainant without any reasonable excuse. Since Respondent was paid by the owner and did not dispute that Complainant was owed at least a good portion of the bill, it was wrongful for Respondent to withhold the amounts that Respondent agreed it owed. 3. For the same reason, the evidence is also 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. 4. In accordance with the Citation and Complaint issued on April 6, 2001, and A.A.C. R4-9-117, this tribunal has taken administrative notice of and reviewed Respondent’s prior disciplinary record. It shows that Respondent has been licensed in Arizona since 1996 and has never been disciplined. Thus, the appropriate discipline in this case is to require Respondent to pay Complainant $3308.00 or face suspension of its license. RECOMMENDED ORDER IT IS RECOMMENDED that Respondent’s Class B license 116857 be suspended beginning on the effective date of the Registrar’s Order in this matter until Respondent has paid Complainant $3308.00. IT IS FURTHER RECOMMENDED that if Respondent pays Complainant $3308.00 before the effective date of the Registrar’s Order, the license suspension shall not take place and Citation and Complaint F01-0123 shall be closed.

Done this 24th day of August, 2001.

OFFICE OF ADMINISTRATIVE HEARINGS

______________________________________ Eric A. Bryant Administrative Law Judge

Original mailed this ___ day of August 2001, to:

Michael P. Goldwater Registrar of Contractors ATTN: Joyce Armijo 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