ALJDEC decisions subject to certification as final

06F-M2589-ROC · Registrar of Contractors · 2007-08-01

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: July 18, 2007. APPEARANCES: Tucker Plumbing, Inc. was represented by its attorney, Gary Sundberg, Esq. Dynamite Custom Homes, L.L.C. did not appear. ADMINISTRATIVE LAW JUDGE: Brian Brendan Tully _____________________________________________________________________ Based upon the evidence of record, the Administrative Law Judge makes the following Findings of Fact, Conclusions of Law and Recommended Order:

FINDINGS OF FACT

1. Dynamite Custom Homes, L.L.C. (“Respondent”) is the holder of License No. 182238, a Class B- contracting license issued by the Registrar of Contractors (“Registrar”). 2. Tucker Plumbing, Inc. (“Complainant”) is the holder of License Nos. 54006 and 069458, which are contracting licenses issued by the Registrar. 3. In December 2004, Respondent hired Complainant to complete the plumbing scope of work for its original plumbing contractor on a construction project at Lot 49 of Las Sendas in Mesa, Arizona. 4. Respondent’s scope of work was divided into three phases: rough-in, top out framing, and trim. Respondent completed the rough-in and top out framing phases of work, but it did not complete the trim phase because Respondent had not paid for the prior work in full. 5. Complainant filed a written complaint with the Registrar alleging statutory violations by Respondent. 6. In response to the filed complaint, the Registrar issued a Citation and Complaint in Case No. M06-2589 alleging possible violation by Respondent of A.R.S. § 32-1154(A)(7) and (11). The Registrar then referred the case to the Office of Administrative Hearings, an independent agency, for formal hearing. 7. The Registrar issued a Notice of Hearing advising the parties of the time, date and location of the formal hearing. The Notice of Hearing was sent to the parties at their addresses of record with the Registrar. 8. The commencement of the formal hearing was delayed for 15 minutes to allow for the late arrival of Respondent’s authorized representative or attorney. Respondent’s attorney and witnesses were timely present at the hearing. After the delay the Administrative Law Judge conducted the hearing in Respondent’s absence. 9. Complainant presented credible evidence to support its claim that Respondent owed it the sum of $19,221.00 for plumbing work completed on the Lot 49 project. Respondent’s failure to pay that sum to Complainant is a wrongful act that substantially injured Complainant. Complainant has been denied the use of those funds for years and it was forced to hire legal counsel to seek payment of those funds. 10. A review of the official records of the Registrar reveals that Respondent’s Class B- license was revoked on April 20, 2007 in Case No. A07-0055.. Those records reflect that there are eight open complaints, one disciplined complaint and seven resolved/settled/withdrawn complaints against Respondent’s license.

CONCLUSIONS OF LAW

1. The Registrar has jurisdiction over Respondent and the subject matter in this case. 2. Pursuant to A.A.C. R2-19-119(B), Complainant has the burden of proof in this matter. The standard of proof is preponderance of the evidence. A.A.C. R2-19-119(A). 3. Respondent violated the provisions of A.R.S. § 32-1154(A)(7), as cited in the Citation and Complaint issued by the Registrar. 4. Respondent violated the provisions of A.R.S. § 32-1154(A)(11), as cited in the Citation and Complaint issued by the Registrar. 5. Pursuant to A.R.S. § 32-1154(C), the revocation of Respondent’s Class B- contracting license does not deprive the Registrar of authority to impose discipline on Respondent’s license for the above statutory violations.

RECOMMENDED ORDER

Respondent’s License No. 182238 shall be revoked on the effective date of the Order entered in Case No. M06-2589. In the event of certification of the Administrative Law Judge Decision by the Director of the Office of Administrative Hearings, the effective date of the order will be 40 days from the date of that certification.

Done this day, August 1, 2007

______________________________________ Brian Brendan Tully Administrative Law Judge

Original transmitted by mail this ____ day of ____________, 2007, to:

Fidelis V. Garcia, Director Registrar of Contractors Legal Department 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