ALJDEC decisions subject to certification as final

07F-1213-ROC · Registrar of Contractors · 2007-07-19

STATE OF ARIZONA IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: July 19, 2007 APPEARANCES: Complainant : Jacque Stone, Credit Manager, represented Lumbermens Building Centers.[1] Respondent : No representative appeared for Sandella Custom Builders, Inc. ADMINISTRATIVE LAW JUDGE: Gary B. Strickland _____________________________________________________________________ A Hearing was convened to determine whether Respondent Sandella Custom Builders, Inc. violated state law as has been alleged by Complainant Lumbermens Building Centers and as cited by the Arizona Registrar of Contractors (hereinafter also, “the ROC”). Evidence and testimony were presented. Respondent Sandella Custom Builders, Inc. holds a Class KB-01 (Dual Building Contractor) license issued by the Arizona Registrar of Contractors. Complainant alleges that Respondent owes Complainant money for materials supplied. Based upon an examination of the entire record,[2] the following Findings of Fact are made, Conclusions of Law rendered, and DECISION AND RECOMMENDED ORDER issued: FINDINGS OF FACT 1. Respondent’s license (No. 159093) was initially issued on October 10, 2000. The license was most recently renewed on October 31, 2006 with viability through October 31, 2008.[3] The license is presently listed as “Current.” 2. Albert Louis Sandella, Jr. is the Qualifying Party identified on the Sandella Custom Builders, Inc. (hereinafter also, “Sandella Custom Builders” or “the Contractor”) license. 3. The transaction at issue relates to alleged acts and omissions of a construction company licensed by the Registrar of Contractors; the subject agreement(s) that Lumbermens Building Centers seeks to enforce was created in Arizona; and, the various transactions at issue by and between the parties occurred in Arizona. As such, the acts and omissions alleged in the Complaint filed by Lumbermens Building Centers fall within the requirements of Title 32, Chapter 10, Article 3. 4. Jacque Stone, Lumbermens Building Centers’ Credit Manager, testified that Respondent purchased materials from Lumbermens for numerous projects in the past. Payment records reveal that Respondent currently owes, but has refused to pay, several invoices for materials provided in late May and during June 2006.[4] The amount due and owing totals $1,869.18, a figure that includes service charges for 30 and 60 days past due - $101.02 and $71.96, respectively. 5. Although provided notice of the Hearing by the ROC having mailed a NOTICE OF HEARING to Sandella Custom Builders’ addresses of record on June 4, 2007, no representative appeared to defend against the claim.

. . . 6. Believing that Sandella Custom Builders owed it the money and was being obstinate in the decision not to pay, Lumbermens Building Centers filed its Complaint to the ROC on November 27, 2006. In the Complaint, Lumbermens Building Centers asserted that Sandella Custom Builders had not paid $1,869.18 due and owing. 7. Thereafter, because resolution was not forthcoming and upon request of the Complainant, the ROC issued a CITATION AND COMPLAINT on March 20, 2007 citing Sandella Custom Builders with alleged violation of A.R.S. § 32-1154(A)(7) and (11) by its alleged failure to pay what is claimed. 8. Sandella Custom Builders filed an ANSWER to the CITATION AND COMPLAINT on April 4, 2007 specifically denying that it owed payment for materials purchased.[5] 9. Thereafter, upon request of Lumbermens Building Centers, the ROC issued a NOTICE OF HEARING on June 4, 2007 and the Hearing convened pursuant thereto. At the Hearing, Ms. Stone of Lumbermens Building Centers presented evidence as set forth above. 10. It is Lumbermens Building Centerss burden to persuade through the presentation of competent, reliable, and probative evidence that Sandella Custom Builders has committed a “wrongful” or “fraudulent” act by its failure to pay monies due and owing. 11. It is Sandella Custom Builders’ burden to defend against the claim by presenting competent, reliable, and probative evidence that it has not made payment because it has a legally cognizable excuse for not doing so and, in the process, has not acted in a manner violative of any legislative or Agency proscription. 12. Lumbermens Building Centers did not offer evidence implicating Sandella Custom Builders in commission of fraudulent[6] act and/or omission. 13. Lumbermens Building Centers has established that the licensee, Sandella Custom Builders, owes it $1,869.18. 14. The weight and sufficiency of the evidence is uncontested that Sandella Custom Builders has failed, without legal excuse, to pay monies to Lumbermens Building Centers in excess of $750. for services and materials in connection with its activities as a Contractor.

APPLICABLE LAW The CITATION AND COMPLAINT issued by the Registrar of Contractors charged Respondent with possible violations of A.R.S. § 32-1154(A)(7) and (11). Those statutory sections require that a holder of a license or a person listed on a license not commit the following:

7. The doing of a wrongful or fraudulent act by the licensee as a contractor resulting in another person being substantially injured.

11. Failure by a licensee or agent or official of a licensee to pay monies in excess of seven hundred fifty dollars when due for materials or services rendered in connection with the licensee's operations as a contractor when the licensee has the capacity to pay or, if the licensee lacks the capacity to pay, when the licensee has received sufficient monies as payment for the particular construction work project or operation for which the services or materials were rendered or purchased.

. . .

. . . . . . . . . . . . . . . CONCLUSIONS OF LAW 1. The Registrar of Contractors has jurisdiction over Complaint No. 07-1213 under A.R.S. § 32-1101, et seq., a chapter that authorizes the Registrar to impose disciplinary sanctions against licensees for violations of A.R.S. § 32-1154. At all times relevant, Sandella Custom Builders, Inc. was a licensee. 2. The burden of persuasion generally at an administrative hearing falls to the party asserting a claim, right or entitlement, or an Agency seeking to impose a penalty.[7] Further, the standard of proof is that of the “preponderance of the evidence”.[8] Proof by a preponderance means that the evidence is sufficient to persuade the finder of fact that the proposition is “. . . more likely true than not.”[9] The evidence taken as a whole must convince the decision maker that the party who bears the overall burden of persuasion, in this case Complainant Lumbermens Building Centers, is more probably correct on the issue(s) in dispute. 3. Observing these standards, Complainant has satisfied its burden, by a preponderance of the evidence, that Respondent Sandella Custom Builders has violated each of the controlling statutory and regulatory provisions by failing to pay monies due and owing. Complainant has persuaded, it being uncontested, that Sandella Custom Builders owes it $1,869.18 for materials supplied. Payment is long past due; no excuse for nonpayment is evident. As such, Sandella Custom Builders is found to have violated A.R.S. § 32-1154(A)(11). 4. Sandella Custom Builders’s failure to make the payment is wrongful and the injury is substantial[10] under A.R.S. § 32-1154(A)(7). As these facts have been established by the testimony and evidence offered into the record and as charged in the CITATION AND COMPLAINT, Sandella Custom Builders is susceptible to disciplinary measure. 5. A review of Sandella Custom Builders’s license history[11] reveals nothing remarkable.[12] RECOMMENDED ORDER In view of the foregoing, IT IS RECOMMENDED that the Registrar of Contractors enter an Order suspending Lic. No. 159093 until such time as Sandella Custom Builders, Inc. provides written proof to the ROC that it has paid $1,869.18 to Lumbermens Building Centers. If such proof of payment is provided prior to the effective date of the Registrar’s Order in the matter, Complaint No. 07-1213 should then be closed. In the event of the certification of the Administrative Law Judge Decision by the Director of the Office of Administrative Hearings, the effective date of the Order will be forty days from the date of that certification.

Done this 19th day of July 2007.

______________________________________ Gary B. Strickland Administrative Law Judge

Original transmitted by mail this 20th day of July 2007 to:

Registrar of Contractors Fidelis V. Garcia, Director Att’n:Legal Department 800 West Washington, 6th Floor Phoenix, AZ 85007

By ___________________________

----------------------- [1] Now, Lumbermens. Inc.

[2] The record consists of those documents found within the Agency’s case file, the contents of which the Administrative Law Judge has accorded Administrative notice, the exhibits offered by the parties, respectively, and the digital record of the proceedings under A.A.C. R2-19-121. Complainant offered one exhibit, marked C-1. The exhibit was received.

[3] See http://www.azroc.gov/clsc/AZROCLicenseQuery

[4] See Exhibit C-1. [5] Within the Agency Hearing file.

[6] See Echols v. Beauty Built Homes, 132 Ariz. 498, 500; 647 P.2d 629, 631 (Ariz. 1982) (“A showing of fraud requires (1) a representation; (2) its falsity; (3) its materiality; (4) the speaker's knowledge of its falsity or ignorance of its truth; (5) the speaker's intent that it be acted upon by the recipient in the manner reasonably contemplated; (6) the hearer's ignorance of its falsity; (7) the hearer's reliance on its truth; (8) the right to rely on it; (9) his consequent and proximate injury. (citation omitted). Each element must be supported by sufficient evidence. ‘Fraud may never be established by doubtful, vague, speculative, or inconclusive evidence.’ In re McDonnell's Estate, 65 Ariz. 248, 253, 179 P.2d 238, 241 (1947)”).

[7] See Ariz. Admin. Code R2-19-119(B).

[8] Culpepper v. Arizona Board of Nursing, 187 Ariz. 431, 930 P.2d 508 (App. 1997); See also Ariz. Admin. Code R2-19-119(A).

[9] In re Arnold and Baker Farms, 177 B.R. 648, 654 (9th Cir. BAP (Ariz.) 1994). See also J. LIVERMORE, R. BARTELS, & A. HAMEROFF, LAW OF EVIDENCE ( 301.1(4th ed. 2000) (One party bears the overall burden of persuasion on each fact material to the party’s claims and defenses. Further, the party with the burden of persuasion on a particular fact is required to satisfy the burden of production of enough qualitative evidence sufficient to support a finding of the existence of the fact, following a reasonable person standard.)

[10] Meaning, a material injury, one that is not illusory. See ”substantial”: WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY 2280 (2002).

[11] See http://www.azroc.gov/clsc/AZROCLicenseQuery

[12] See A.A.C. R4-9-117 for authority to examine the license record when considering a proper penalty.

Prior Record

In any disciplinary proceeding conducted by the Registrar, the licensee's entire license file including the record of prior citations and decisions may be considered by the Registrar in making a decision and order in the case.

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

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