ALJDEC

01F-T0927-ROC · Registrar of Contractors · 2001-10-12

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: Wednesday, October 10th, 2001; 9:00 a.m. APPEARANCES: The complainant, Sierra Mining and Crushing, LLC, was represented by Ms. Selena Geiser, Office Manager. The respondent, Ariwest, Inc., was represented by Mr. Fred King, owner. ADMINISTRATIVE LAW JUDGE: Grant Winston. _____________________________________________________________________

The administrative hearing of this matter was held in the Office of Administrative Hearings, Tucson, 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. The respondent herein, Ariwest, Inc., is, and during all times material hereto was, a contractor, licensed by and doing business in the State of Arizona, holding Class A- License number 074443. 2. The complainant is a Tucson business selling construction materials and services. 3. The parties had a business relationship relative to this complaint dating back to 1998. Respondent would purchase material from the complainant and use the complainant’s facility to dump other materials. 4. Respondent made several trips to and from the complainant’s pit. Eventually respondent’s account with the complainant fell into arrears. Respondent last made a trip to the complainant’s pit in February of 2001. Complainant’s evidence of record includes invoices billed to the respondent that have not been paid. Respondent now owes the complainant $15,000.00. 5. Complainant began telephoning respondent’s office when the account became delinquent. Respondent’s owner, Mr. Fred King, would not return telephone calls. 6. After these inquiries were made to Mr. King to ask about the account, the complainant received a letter from respondent stating that some of the material hauled from the complainant’s pit and paid for by the respondent for road construction was “out of spec,” meaning it failed inspection by the county. 7. According to Mr. King’s testimony, the material from complainant’s pit was rejected by someone from the county he identified only as “Armando.” Mr. King said the material failed a sieve test, but produced no sieve test for evidence. Complainant’s evidence was that they had never seen any failed sieve test for their material. Respondent claims because the material was rejected his company was out of pocket not only the complainant’s price for the material, but the cost of removing and redoing much work on the road. 8. Respondent admits that he does owe the complainant the money claimed by the complainant. However, respondent’s position is that the parties should sit down and work out some agreement based on what he owes and what he is out of pocket for the material he purchased from complainant which he claims was faulty. 9. Respondent’s evidence that complainant’s material was faulty is not convincing. If the material did flunk a sieve test, the sieve test could easily have been made a part of the record. Or, respondent could have subpoenaed “Armando” from the county to testify, or the respondent could have brought at least one corroborating witness to the hearing. Respondent did none of that. 10. Moreover, the material respondent purchased from the complainant which he claims was faulty is not any of the material and services for which complainant seeks to be paid. There is no issue, no dispute, that respondent does owe the complainant what complainant claims. The issue raised by respondent is separate and apart from the issue in this administrative complaint, even if he had brought to the hearing adequate evidence to support it. 11. Notice is taken of the respondent’s prior license record with the Registrar of Contractors. CONCLUSIONS OF LAW 1. The Office of Administrative Hearings has jurisdiction to hear this matter. A.R.S. §32-1156, A.R.S. §41-1092. 2. The respondent herein is charged in the citation and complaint with possible violations of A.R.S. §32-1154.A.7., and 11. 3. A.R.S. §32-1154.A.11. prohibits the failure of a licensed contractor to pay monies in excess of $750.00 for materials or services rendered in connection with his operation as a contractor, when he has the capacity to pay, or, if he lacks the capacity, when he has received sufficient monies for the particular project or operation for which the services or materials were rendered. 4. Respondent admits that he owes the money, and produced no evidence of inability to pay. Respondent has violated A.R.S. §32-1154.A.11 as set forth in the citation and complaint. 5. A.R.S. §32-1154.A.7. prohibits a licensed contractor from engaging in any wrongful or fraudulent act as a contractor which results in another person being substantially injured. There is no evidence of a violation of this statute independent of the violation of subsection 11 already concluded. RECOMMENDED ORDER In view of the foregoing, it is hereby recommended that the respondent’s Class A- License Number 074443 be suspended until such time as the Registrar of Contractors receives proof that the respondent has paid the complainant the $15,000.00 he owes. It is further recommended that if the respondent does provide the registrar with proof of the payment on or before the effective date of this order (40 days after the date of mailing shown by the registrar’s certification on the order), then no license suspension shall take place and Citation and Complaint Number T01-0927 shall be closed. Done this day, October 25th, 2001.

________________________________ GRANT WINSTON Administrative Law Judge

Original transmitted by mail this ____ day of October, 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