ALJDEC

02F-0824-ROC · Registrar of Contractors · 2002-05-13

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: April 23, 2002. APPEARANCES: Robert D. McCoy, Esq. represented the Complainant. Respondent failed to appear. ADMINISTRATIVE LAW JUDGE: Constantino Flores _____________________________________________________________________ The question presented in this matter is whether Respondent United West Group, L.L.C. is subject to discipline for acts or omissions in violation of A.R.S. § 32- 1154. Based on the evidence of record, the Administrative Law Judge makes the following Findings of Fact, Conclusions of Law and Recommended Order: FINDINGS OF FACT 1. Complainant Phoenician Pool Construction (“Phoenician Pool”) is the holder of a class B-05 license (No. 082570) and a class A-09 license (No. 082589) issued by the Registrar of Contractors (“ROC”). Michael James Ferraro is the qualifying party. 2. Respondent United West Group L.L.C. (“United West”) is the holder of a class B license (No. 149321). Glen Olen Rutledge is the qualifying party. 3. On or about February 24, 2000, Phoenician Pool entered into an agreement with United West to construct a pool on Lot 3 of The Boulders, at the Stuart residence, located at 34532 N. 79th Way, Scottsdale, Arizona. Phoenician’s proposed price for this work was $45,780.68.

4. Phoenician Pool completed the work, and United West still owes Phoenician Pool the sum of $16,021.00 regarding the project on Lot 3. 5. On or about March 8, 2000, Phoenician Pool entered into an agreement with United West to construct a pool on Lot 129, Unit 8, of Desert Mountain, Turqouise Ridge, at the Weingard residence, located at 11312 East Mariola Way, Scottsdale, Arizona. Phoenician Pool’s proposed price for this work was $28,766.34. 6. Regarding Lot 129, Phoenician Pool completed the work, and United West still owes Phoenician Pool the sum of $7,115.34. 7. On or about July 7, 2000, Phoenician Pool entered into an agreement with United West to construct a pool on Lot 63, of Desert Mountain, at the Morgan residence, located at 39958 N. 103rd Way, Scottsdale, Arizona. Phoenician Pool’s proposed price for this work was $23,931.34. 8. As to Lot 63, Phoenician Pool completed the work, and United West still owes Phoenician Pool the sum of $9,764.54. 9. On October 31, 2001, in regards to the agreements already mentioned, Phoenician Pool filed three separate complaints with the ROC alleging that United West failed to pay Phoenician Pool for work Phoenician Pool had completed on Lots 3, 129, and 63. 10. On January 24, 2002, the ROC issued a Citation and Complaint charging United West with violations of A.R.S. § 32-1154(A)(7) (wrongful or fraudulent act resulting in substantial injury) and (A)(11) (failure to pay monies in excess of seven hundred fifty dollars when due for materials or services rendered). 11. At hearing, Phoenician Pool presented credible testimony and documentation (Exhibits 1, 2, and 3) in support of its claim of nonpayment against United West. Respondent United West failed to appear. CONCLUSIONS OF LAW 1. In this proceeding, Phoenician Pool bears the burden to prove, by a preponderance of the evidence, that United West is subject to discipline for violations of § 32-1154(A)(7) and/or (A)(11) as charged by the Registrar of Contractors in its January 24, 2002 Citation and Complaint. See A.A.C. R2-19-119. A preponderance of the evidence is “such proof as convinces the trier of fact that the contention is more probably true than not.” Morris K. Udall, Arizona Law of Evidence § 5 (1960). 2. Under A.R.S. § 32-1154(A)(7), a contractor is subject to discipline for “the doing of a wrongful or fraudulent act . . . as a contractor resulting in another person being substantially injured.” 3. A.R.S. § 32-1154(A)(11) subjects a contractor to discipline for “failure to pay monies in excess of seven hundred fifty dollars when due for materials or services rendered . . .” 4. Upon the evidence presented, the Administrative Law Judge concludes that Phoenician Pool sustained its burden to prove that United West violated A.R.S. § 32-1154(A)(7) and (A)(11). 5. Based on the foregoing, it is appropriate for the Registrar of Contractors to impose discipline against United West’s license. 6. The ROC’s January 24, 2002 Citation and Complaint advised United West that in the event of a finding of a violation against it, United West’s prior disciplinary record of final orders could be considered in mitigation or aggravation. Accordingly, subsequent to the conclusion of the instant hearing, the Administrative Law Judge took notice of prior final disciplinary orders against United West in the ROC’s official records. Those records revealed the absence of any final ROC orders against United West within the last two years. The Administrative Law Judge considered this mitigating factor when determining appropriate recommended discipline for this matter. 7. The Registrar of Contractors’ authority in disciplinary matters such as the one presented herein includes the ability to impose reasonable conditions that allow the disciplined contractor to reduce the scope of the disciplinary action taken against it. In this case, the Administrative Law Judge deems the exercise of such authority to be appropriate. 8. Upon consideration of all the facts and circumstances presented by the case, the Administrative Law Judge concludes that United West’s class B license (No. 149321) should be suspended. However, such suspension should be conditional and United West should be given the opportunity to avoid suspension by paying or tendering Phoenician Pool the amount of $32,908.88, the sum that United West owes Phoenician Pool for Phoenician Pool’s work on Lots 3, 129, and 63. Imposing such a condition is preferable to imposing disciplinary action against United West’s license without providing a condition to reduce or eliminate same. RECOMMENDED ORDER Based on the foregoing, the Administrative Law Judge makes the following recommended Order: Commencing on the effective date of the Order entered in this matter, United West’s class B license (No. 149321) shall be suspended until the ROC receives credible written proof that United West has paid or tendered to Phoenician Pool the sum of $32,908.88. If United West pays or tenders to Phoenician Pool the sum of $32,908.88 on or before the effective date of the Order entered in this matter, and provides credible written proof to the ROC of such payment, then the above provided suspension shall not take place and this matter shall be closed. Done this day, May 13, 2002.

______________________________________ Constantino Flores Administrative Law Judge

Original transmitted by mail this ____ day of ____________, 2002, 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