ALJDEC decisions subject to certification as final

07F-1025-ROC · Registrar of Contractors · 2007-06-08

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: May 22, 2007. APPEARANCES: Arnett Plumbing, LLC was represented by its attorney, Ryan Skiver, Esq. Dynamite Custom Homes, LLC was represented by its authorized employee, Joey Plany. 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. Arnett Plumbing, LLC (“Complainant”) is the holder of License No. 191119 issued by the Registrar of Contractors. 2. Dynamite Custom Homes, LLC (“Respondent”) is the holder of License No. 182238 issued by the Registrar of Contractors. 3. On or about April 4, 2006, Complainant submitted a proposal to Respondent for performing plumbing work on a project known as Firerock Lot 3 in Fountain Hills, Arizona. Respondent hired Complainant to perform the plumbing subcontracting work. 4. Complainant submitted an invoice dated April 25, 2006 to Respondent in the amount of $20,584.00 upon completion of the rough-in phase. 5. Complainant later submitted an invoice dated May 24, 2006 to Respondent in the amount of $7,175.00 for four change orders. 6. On or about August 23, 2006, Joey Plany, on behalf of Respondent, and Cindy Kleiner, on behalf of Complainant, executed a document regarding Respondent’s issuance of a post-dated check to pay Complainant for its work. That document read as follows:

Dynamite Custom Homes will give Arnett Plumbing a post dated check dated October 1st, 2006 for the amount of $27,759 which is FULL payment for Lot 3 Firerock….This covers invoices 905 and 971.

Further, Arnett Plumbing will not file any liens on Lot 3 Firerock and will not cash Check #3402 until October 1st …

7. Respondent gave Complainant the post-dated check in the amount of $27,759.00. 8. On or about October 5, 2006, Complainant’s bank returned Respondent’s check because Respondent had requested a stop payment on the check. Complainant’s bank charged its account a $5.00 handling fee. 9. Respondent’s stopping payment on the check given to Complainant after agreeing to pay the two outstanding invoices for work performed by Complainant and Respondent’s failure to pay those invoices are wrongful acts which have substantially injured Complainant. 10. The official records of the Registrar of Contractors reflect that Respondent’s License No. 182238 was revoked in Case No. A07-0055 on April 20, 2007. Those records further reflect that there are 8 open complaints, one disciplined complaint and seven resolved/settled/withdrawn complaints against Respondent’s Class B- license.

CONCLUSIONS OF LAW

1. The Registrar of Contractors 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. Pursuant to A.R.S. § 332-1154(C), the prior revocation of Respondent’s License No. 182238 does not deprive the Registrar of Contractors of jurisdiction to impose discipline upon that license for proven violations by Respondent in this matter. 4. Respondent violated the provisions of A.R.S. § 32-1154(A)(7), as cited in the Citation and Complaint issued by the Registrar of Contractors. 5. Respondent violated the provisions of A.R.S. § 32-1154(A)(11), as cited in the Citation and Complaint issued by the Registrar of Contractors.

RECOMMENDED ORDER

Respondent’s License No. 182238 shall be revoked on the effective date of the Order entered in Registrar of Contractors Case No. 07-1025. 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, June 11, 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 ___________________________

-----------------------

Office of Administrative Hearings 1400 West Washington, Suite 101 Phoenix, Arizona 85007 (602) 542-9826