ALJDEC decisions subject to certification as final

07F-1520-ROC · Registrar of Contractors · 2007-11-21

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: November 14, 2007 APPEARANCES: Jorgina Diaz appeared on behalf of Complainant Diaz Carpets, Inc. Respondent Brookman Development Company, Inc. failed to appear. ADMINISTRATIVE LAW JUDGE: Sondra J. Vanella _____________________________________________________________________ The issue presented by this matter is whether Respondent Brookman Development Company, Inc. is subject to discipline for acts or omissions in violation of A.R.S. § 32-1154(A). Based on the evidence of record, the Administrative Law Judge makes the following Findings of Fact, Conclusions of Law and Recommended Order: Procedural Background On October 10, 2007, the Registrar of Contractors issued a Notice of Hearing advising the parties that the scheduled hearing in this matter would convene on November 14, 2007 at 1:30 p.m. On the date and at the time scheduled for the hearing, Jorgina Diaz appeared on behalf of Complainant Diaz Carpets, Inc. (“Diaz”). No one appeared on behalf of Respondent Brookman Development Company, Inc. (“Brookman”). The Administrative Law Judge delayed the commencement of the hearing for approximately fifteen minutes to allow for the appearance of Brookman, or the receipt of any information that would constitute good cause for Brookman’s absence or delay. No such information was received. Therefore, the hearing proceeded in Brookman’s absence. FINDINGS OF FACT Brookman is the holder of a Class B-01 license (No. 206448) issued by the Registrar of Contractors (“ROC”).[1] Brookman contracted with Diaz for Diaz to perform specified carpet and tile installation on two separate projects during the timeframe July 2006 through August 2006. The first project, located at 2317½ North 8th Street, called for Diaz to install carpet and pad in two bedrooms, the living room, and hallway. See Copy of invoice dated July 12, 2006, contained in the case file, the contents of which administrative notice was taken. The contract price was $795.00. Id. Brookman paid a $400.00 deposit to Diaz, and Diaz performed the work it was contracted to perform. Diaz billed Brookman the balance due in the amount of $395.00. Brookman failed to pay Diaz the balance due and owing for this work. The second project, located at 6809 West Quail, called for Diaz to install carpet in the living room, family room, three bedrooms, hallway, and closets, and install tile in the kitchen, laundry room, bathrooms, and entryway. See Copy of invoice dated July 12, 2006. The contract price was $4,151.64. Id. Brookman paid Diaz a deposit in the amount of $1,000.00. See Copy of check contained in the case file. Diaz performed the work it was contracted to perform, and billed Brookman the balance due and owing in the amount of $3,151.64. Brookman failed to pay Diaz the balance owing for this work. Diaz repeatedly attempted to contact Brookman to inquire as to when Diaz would be paid. Diaz’s inquiries went unanswered by Brookman. On or about January 5, 2007, Diaz filed a complaint referencing the above-delineated projects against Brookman with the ROC, alleging that Brookman has failed to pay Diaz the balance owed for the work Diaz performed. The Administrative Law Judge finds, based on the weight of the credible evidence of record, that the sum of $3,546.64 is the proper balance due and owing to Diaz from Brookman for the work Diaz performed on the two projects. Notwithstanding repeated attempts and billings over a prolonged period of time, said balance remains unpaid. CONCLUSIONS OF LAW 1. In this proceeding, Brookman is subject to discipline for violations of A.R.S. § 32-1154(A)(7), (A)(11), and/or (A)(18) as charged by the ROC in its June 28, 2007 Citation and Complaint. See Arizona Administrative Code R2-19-119. 2. 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). 3. The Administrative Law Judge concludes that Diaz met its burden of proof as to all three of the ROC charges. 4. Under A.R.S. § 32-1154(A)(11), a contractor is subject to discipline for the “failure . . . to pay monies in excess of seven hundred fifty dollars when due for materials or services rendered . . .” The instant record demonstrates that Brookman failed to pay, when due, the sum of $3,546.64 to Diaz. Accordingly, under all of the facts and circumstances presented herein, Brookman’s conduct is found to constitute a violation of A.R.S. § 32-1154(A)(11). 5. Under A.R.S. § 32-1154(A)(18), a contractor is subject to discipline for “contracting or offering to contract or submitting a bid while the license is under suspension or while the license is on inactive status.” The Administrative Law Judge concludes that Brookman contracted with Diaz while Brookman’s license was under suspension for lack of a qualifying party and lack of bond. Therefore, Brookman violated A.R.S. § 32-1154(A)(18). 6. 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.” The Administrative Law Judge concludes, from the evidence presented, that Brookman committed wrongful acts that substantially injured Diaz by failing to pay for all of the work performed by Diaz. Therefore, Brookman violated A.R.S. § 32-1154(A)(7). 7. Based upon the above violations of the provisions of A.R.S. § 32- 1154(A), grounds exist to impose discipline against Brookman’s license. 8. Upon consideration of all of the facts and circumstances presented by this case, including Brookman’s failure to appear for hearing and Brookman’s suspended license status, the Administrative Law Judge concludes that Brookman’s Class B-01 license should be revoked. RECOMMENDED ORDER The Administrative Law Judge makes the following Recommended Order: Based on the foregoing, the Administrative Law Judge makes the following Recommended Order: On the effective date of the Order entered in this matter, Brookman’s Class B-01 license (No. 206448) shall be revoked unless the ROC receives written proof that Brookman has paid the sum of $3,546.64 to Diaz. If the ROC receives written proof that Brookman has complied with the foregoing condition on or before the date specified above, then the above provided license revocation shall not take place and the Citation and Complaint in Case No. 07-1520 shall be closed. 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, November 21, 2007.

______________________________________ Sondra J. Vanella Administrative Law Judge

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

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

By ___________________________

----------------------- [1] A review of the ROC’s official records revealed that Brookman’s contracting license was suspended on January 29, 2006 for lack of a qualifying party, suspended on March 9, 2006 for lack of bond, and suspended on May 1, 2007 for non-renewal. Such suspended license status does not preclude this tribunal from conducting these administrative proceedings. A.R.S. § 32-1154(C).

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