ALJDEC

02F-L0018-ROC · Registrar of Contractors · 2002-01-30

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: Friday, January 18th, 2002; 8:30 a.m. APPEARANCES: The complainant, Westco Paint, Inc., was represented by Mr. Peter Cogan, President. The respondent, Mr. Mark Scott Mathews, doing business as Mathews Custom Painting, represented himself. ADMINISTRATIVE LAW JUDGE: Grant Winston. _____________________________________________________________________ This matter was brought on for administrative hearing held by the Office of Administrative Hearings, in Lake Havasu City, 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, Mark Scott Mathews, doing business as Mathews Custom Painting, is, and during all times material hereto was, a contractor licensed by and doing business in the State of Arizona, holding Class C-34 License number 113001. 2. The complainant herein, Westco Paint, Inc., is a paint supply business principally located in Lake Havasu City, Arizona. 3. Respondent had made a number of purchases from the complainant, on credit, in the early part of 2001, for use in his work as a licensed contractor. In April of 2001, certain of complainant’s invoices to respondent totaling $2,712.27, became due. The parties stipulated on the record of the hearing that the respondent does in fact owe the complainant the $2,712.27. 4. Respondent stated that his business had fallen on hard times in the recent past, and he filed for a Chapter 13 bankruptcy two years ago. Respondent added that since that time his business has rebounded, and is now doing rather well. His business has a substantial amount of work now in Sedona, Arizona. He has been making double mortgage payments and repaying his own business. He said he is willing to make installment payments to complainant in an effort to repay the amount he owes. 5. Complainant was unwilling to accept a payment plan. He testified he has heard that offer from respondent before, and is still owed money. 6. Notice is taken of the respondent’s prior license record with the Arizona Registrar of Contractors. CONCLUSIONS OF LAW 1. This hearing was held under authority of and pursuant to A.R.S. §32- 1156, and A.R.S. §41-1092. 2. Respondent herein is charged in the instant 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 a licensed contractor from failing to pay monies in excess of $750.00 when due for materials rendered in connection with his operations as a contractor, when he has the capacity to pay, or lacking the capacity to pay, when he has received sufficient monies as payment for the particular construction work project or operation for which the materials were purchased. The stipulated facts show that respondent owes complainant more than the statute’s threshold amount for purchase of painting supplies made in connection with his work as a licensed contractor. The evidence further shows that the respondent has had and has now the ability to pay the complainant. Respondent violated A.R.S. §32-1154.A.11. 4. A.R.S. §32-1154.A.7. prohibits a licensed contractor from doing any wrongful or fraudulent act as a contractor which results in another person’s substantial injury. There is no evidence or allegation of fraud in this case, and no evidence of any wrongful act by respondent as a contractor independent of the failure to pay the complainant the money owed. RECOMMENDED ORDER In view of the foregoing Findings of Fact and Conclusions of Law, it is hereby recommended that the respondent’s Class C-34 License number 113001 be suspended until such time as the Arizona Registrar of Contractors receives written proof that the respondent has paid the complainant $2,712.27. It is further recommended that if the respondent does pay the complainant $2,712.27, and the registrar receives written proof of same, all on or before the effective date of this order (40 days after the date of service shown by the registrar’s certification of the order) no license suspension shall take place and Citation and Complaint L02-0018, together with the complaint on which it is based, shall be closed. Done this day, January 31st, 2002.

________________________________ GRANT WINSTON Administrative Law Judge

Original transmitted by mail this ____ day of January, 2002, to:

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

By _______________________________

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