ALJDEC decisions subject to certification as final

07F-L0249-ROC · Registrar of Contractors · 2007-10-03

STATE OF ARIZONA IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: September 17, 2007 APPEARANCES: Complainant: Robert Gaffney, corporate officer and qualifying party, appeared, pro per. Respondent: Respondent failed to appear either by authorized representative or counsel. ADMINISTRATIVE LAW JUDGE: Brian E. Smith _____________________________________________________________________ Evidence and testimony were presented and, based on the entire record in this matter, the following Findings of Fact, Conclusions of Law and Recommended Order are made:

FINDINGS OF FACT 1. The matter convened for hearing via videoconference at the time, date and place set forth in the Registrar of Contractors’ Notice of Hearing dated August 13, 2007. 2. Complainant Bob’s Cabinets and More, Inc. (“Complainant”) is a corporation doing business in Arizona. Robert Gaffney (“Gaffney”), corporate officer, appeared on behalf of Complainant. 3. Respondent Iron Gate Homes, LLC (“Respondent”) is a limited liability company which holds Arizona Contractor’s License No. 206186, Class B (General Residential) issued by the Registrar of Contractors (“ROC”) on May 3, 2005. Donald Joseph Carroll is a member and the qualifying party for the license. A review of the licensing database maintained by the Registrar indicates that this license was suspended October 22 through November 2, 2006 and May 2, 2007 for lack of bond and June 1, 2007 for non- renewal. 4. Complainant filed a complaint with the ROC on November 21, 2006 wherein it alleged, inter alia, that Respondent failed to remit payment of $6,375.00 for cabinets provided to a residence located at 221 Buckboard Pl., Lake Havasu City, Arizona (“premises/project”). 5. On April 17, 2007 the Registrar issued a CITATION AND COMPLAINT in case No. L07-0249 charging Respondent with possible violations of A.R.S. §32-1154A 7 and 11. 6. Respondent filed its answer on April 27, 2007 wherein it alleged, inter alia, it “was terminated wrongfully by homeowner, the cabinets are still in the possession of [Complainant]. 7. Gaffney testified on behalf of Complainant and submitted Exhibits C-1 through C-13 which were marked, admitted and considered. 8. Respondent failed to appear either by authorized representative or counsel. 9. On the testimony and evidence of record, the following is found: a. On or about July 24, 2006, Complainant submitted Estimate E732 to Respondent[1] to provide cabinets and countertops for the project for a total of $6,375.00. (Exhibit C-1) b. Respondent’s representative, Marie Carroll, executed the estimate on July 28, 2006. (Exhibits C-1 and C-2) c. On July 27, 2006, Marie Carroll, on behalf of Respondent, completed a Cabinet Selection Form at Complainant’s office which set forth those cabinets and countertops to be provided by Complainant for the project. (C-3) d. On July 28, 2006, Complainant placed an order with its supplier, Fashion Cabinet, for the subject cabinets and countertops. (Exhibit C-4) e. Fashion Cabinet confirmed Complainant’s order on July 28, 2007 (Exhibit C-5) and thereafter delivered the products on or about September 7, 2006. f. On September 18, 2006, Gaffney went to the jobsite to ascertain its progress and determine when installation of the cabinets and countertops could begin. At that time, Gaffney learned that cabinets and countertops from another contractor had been installed on the premises. g. Gaffney’s subsequent efforts to contact Respondent regarding this situation were unsuccessful and Respondent failed to remit payment for the subject product in response to Complainant’s invoices. h. By letter dated December 11, 2006 (Exhibit C-10), Respondent advised Complainant that the project’s owner had “fired” Respondent on August 30, 2006 and used another contractor’s product. i. On July 11, 2007, Complainant sent Respondent Invoice 47766 for $7,504.28 in another attempt to collect the outstanding amount due for the subject cabinets and countertops. Added to the original $6,375.00 was $325.28 in sales tax and $804.00 in interest. j. No evidence was presented by Complainant regarding its entitlement to sales tax and/or interest under the parties’ contract.

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

7. The doing of a wrongful act by the licensee as a contractor resulting in another legal excuse for the abandonment or refusal.

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 his operations as a contractor when he has the capacity to pay or, if he lacks the capacity to pay, when he 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 this matter, pursuant to A.R.S. § 32-1101, et seq., which authorizes the Registrar to impose disciplinary sanctions against licenses for violations of A.R.S. § 32-1154. 2. To warrant such sanctions by the Registrar, Complainant must demonstrate by a preponderance of the evidence that Respondent violated any one, or more, of the statutory sections cited. 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.” In re Arnold and Baker Farms, 177 B.R. 648 (9th Cir. BAP (Ariz.) 1994). See also, Culpepper v. State of Arizona, 187 Ariz. 43, 930 P.2d 508 (App. 1996). It is “evidence which is of greater weight or more convincing than the evidence which is offered in opposition to it; that is, evidence which as a whole shows that the fact sought to be proved is more probable than not.” Black’s Law Dictionary 1182 (Rev. 6th ed. 1990). 3. The undersigned determines and concludes that Respondent’s refusal and/or inability to remit payment to Complainant of the $6,375.00 owed for cabinets and countertops ordered by Respondent for the subject project constituted a violation of A.R.S. §32-1154A (11). 4. The foregoing violation is deemed by this tribunal to have been wrongful and has resulted in substantial injury to Complainant. Therefore, violations of A.R.S. §32-1154A (7) have been proved, as cited. 5. It is further determined and concluded that Respondent’s failure to appear at the instant hearing shall serve as a factor in aggravation in this matter.

RECOMMENDED ORDER On the basis of the foregoing, IT IS RECOMMENDED that, commencing on the effective date of the Order entered in this matter, the B license of Respondent be suspended until the Registrar of Contractors receives written proof that Respondent has paid or tendered the sum of not less than $6,375.00 for cabinets and countertops ordered for the subject project and, upon such payment, Respondent shall be entitled to receive the subject materials.[2] Done this day, October 3, 2007.

_____________________ Brian E. Smith Administrative Law Judge

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

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

By ______________________ ----------------------- [1] Estimate E732 was submitted to “C & B Construction” which refers to Respondent’s former name, Carroll and Bracale Construction Company, LLC. [2] 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 in this matter will be forty (40) days from the date of that certification.

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