ALJDEC decisions subject to certification as final

07F-L0419-ROC · Registrar of Contractors · 2007-12-20

STATE OF ARIZONA IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: December 13, 2007 APPEARANCES: Complainant: Shelli Gutierrez, operations manager, 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 November 8, 2007. 2. Complainant A and N Garage Doors, Inc. (“Complainant”) is a corporation doing business in Arizona. Shelli Gutierrez (“Gutierrez”), Operations Manager, appeared on behalf of Complainant. 3. Respondent Decker and Milo Builders, LLC (“Respondent”) is a limited liability company which holds Arizona Contractor’s License No. 197490, Class KB-02 (Dual Residential and Small Commercial) issued by the Registrar of Contractors (“ROC”) July 5, 2004. Clifford Milo Decker 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by the Registrar indicates that this license was suspended August 1 through September 14, 2006 for non-renewal and was revoked November 8, 2007 (L07-0396). 4. Complainant filed a complaint with the ROC March 8, 2007 wherein it alleged non-payment of $5,635.00 for installation of a garage door and openers on a project located at 3060 Tripoli Drive, Lake Havasu City, Arizona (“premises/project”). 5. On August 1, 2007, the Registrar issued a CITATION AND COMPLAINT in Case No. L07-0419 charging Respondent with possible violations of A.R.S. §32-1154A 7 and 11. 6. Respondent filed an answer on August 16, 2007 wherein it asserted that it intended to pay this invoice and was attempting to collect money due it to do so. 7. At the hearing, Gutierrez testified on behalf of Complainant and submitted Exhibits C-1 and C-2 which were marked, admitted and considered. 8. Respondent failed to appear through any authorized representative or counsel. 9. From the evidence elicited at the hearing, the following salient facts are important to note: a. Complainant contracted to install garage doors and openers for Respondent at the subject project per a verbal contract with Cliff Decker. b. Complainant completed the installation of the doors and openers on or about December 12, 2006 and submitted an invoice for such work on that date. (Exhibit C-1) c. Respondent has made no payment on the contract amount and owes Complainant not less than $5,635.00.

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 Complainant established by a preponderance of credible, probative and relevant evidence that Respondent’s refusal and/or inability to remit payment to Complainant of the $5,635.00 due under the contract for work Complainant performed and/or materials installed on the project constituted a violation of A.R.S. §32-1154A (11). 4. It is also determined and concluded that Respondent’s failure to remit the above-referenced $5,635.00 is deemed by this tribunal to have been wrongful and have 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 prior revocation of Respondent’s Arizona contractor’s license as referenced in Finding of Fact 3 and failure to appear at the instant hearing shall serve as factors 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 KB-02 license of Respondent be revoked.[1] Done this day, December 20, 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] 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