ALJDEC decisions subject to certification as final

07F-M2115-ROC · Registrar of Contractors · 2008-01-28

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: January 9, 2008 APPEARANCES: Complainants Joe and Cathy Blanchard appeared on their own behalf. No one appeared on behalf of Respondents Ariwa Concrete, Inc. and/or All Arizona Concrete, Inc. ADMINISTRATIVE LAW JUDGE: Sondra J. Vanella _____________________________________________________________________ The issue presented by this matter is whether Respondents Ariwa Concrete, Inc. (“Ariwa”) and/or All Arizona Concrete, Inc. (“All Arizona”) are 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 November 27, 2007, the Registrar of Contractors issued a Notice of Hearing advising the parties that the scheduled hearing of this matter would convene on January 9, 2008 at 9:00 a.m. On the date and at the time scheduled for the hearing, Complainants Joe and Cathy Blanchard appeared on their own behalf. No one appeared on behalf of Ariwa and/or All Arizona. The Administrative Law Judge delayed the commencement of the hearing for approximately fifteen minutes to allow for the appearance of Respondents, or the receipt of any information that would constitute good cause for Respondents’ absence or delay. No such information was received. Therefore, the hearing proceeded in Respondents’ absence. FINDINGS OF FACT Ariwa is the holder of a Class C-09 license (No. 225810) issued by the Registrar of Contractors (“ROC”). All Arizona is the holder of a Class C-09 license (No. 145681) issued by the ROC.[1] On or about February 10, 2006, the Blanchards contracted with All Arizona for All Arizona to install the foundation and slab of the Blanchards’ custom home located at 17315 East Star Flower, in Queen Creek, Arizona. See Exhibit 4. The contract price was $33,388.38. Id. All Arizona performed the work in or about June 2006. The Blanchards have paid $37,963.38. This amount includes the contract price and an additional amount to raise the stem wall six inches in height. On or about May 2, 2007, the Blanchards filed a complaint against All Arizona and Ariwa with the ROC. In their complaint, the Blanchards alleged the following: All Arizona Concrete needs to give me full & unconditional lien weavers (sic), all subcontractors on this job, and pay there (sic) bills. I’m owner builder.

On or about May 22, 2007, the Blanchards filed a second complaint against All Arizona and Ariwa with the ROC. In this complaint, the Blanchards alleged the following: Ariwa Concrete, Inc./All Arizona Concrete, Inc. same owners new lic., new name. Our complaint has not been resolved. We request a hearing. We request full & unconditional lein (sic) wavers (sic) on all subconcrators (sic).

6. At hearing, Mrs. Blanchard testified that she and her husband have requested lien waivers from Ariwa and All Arizona for all subcontractors, and specifically for Brundage Bone Concrete Pumping, Inc. (“Brundage Bone”) and White Cap Construction Supply, Inc. (“White Cap”). Mrs. Blanchard testified that no liens have been placed upon the property as of the hearing date, however, Brundage Bone filed a Twenty Day Preliminary Notice with an estimated price of $3,000.00, and White Cap filed a Twenty Day Preliminary Notice with an estimated price of $10,000.00. Mrs. Blanchard testified that notwithstanding the fact that liens have not yet been placed on the property, Brundage Bone verbally advised the Blanchards that if it is not paid, a lien will be placed on the property. The Blanchards testified that the services for which Ariwa and All Arizona contracted Brundage Bone, specifically to pump concrete to the site, were not necessary, as their lot is one and a half acres with full access, and as such, concrete trucks would have been capable of delivering concrete. 7. Due to Ariwa’s/All Arizona’s failure to appear for hearing, neither presented controverting evidence. CONCLUSIONS OF LAW In this proceeding, the Blanchards bear the burden to prove, by a preponderance of the evidence, that Ariwa and/or All Arizona are subject to discipline for violating A.R.S. § 32-1154(A)(7) as charged by the ROC in its August 29, 2007 Citation and Complaint. See Arizona Administrative Code R2-19-119. 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). The Administrative Law Judge concludes that the Blanchards met their burden of proof. 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, based on the weight of the credible evidence presented at hearing, that Ariwa/All Arizona committed a wrongful act substantially injuring the Blanchards by failing to provide lien waivers to the Blanchards notwithstanding the Blanchards’ payment in full to Ariwa/All Arizona, subjecting the Blanchards to the threat of liens being placed on their property. Therefore, the Administrative Law Judge concludes that Ariwa/All Arizona violated A.R.S. § 32-1154(A)(7). 5. Based on the foregoing, it is appropriate for the ROC to impose discipline against Ariwa’s and All Arizona’s Class C-09 licenses. 6. Upon consideration of all of the facts and circumstances presented by this case, including Ariwa’s and All Arizona’s failure to appear for hearing and All Arizona’s suspended license status, the Administrative Law Judge concludes that the ROC should suspend Ariwa’s and All Arizona’s Class C-09 licenses. 7. The ROC’s authority in disciplinary matters such as the one presented herein includes the ability to impose reasonable conditions that allow the disciplined contractor to reduce the scope of the disciplinary action taken against it. The Administrative Law Judge deems the exercise of such authority to be appropriate in the instant case, and preferable to imposing discipline against Ariwa’s and All Arizona’s Class C-09 licenses without providing a condition to reduce or eliminate same. 8. Upon consideration of all of the facts and circumstances presented by this case, the Administrative Law Judge concludes that the ROC should suspend Ariwa’s and All Arizona’s Class C-09 licenses subject to the condition that Ariwa and All Arizona can avoid such suspension by providing to the Blanchards prior to the effective date of the Order entered in this matter, lien waivers for all subcontractors that worked on or supplied materials or equipment for the project, and specifically Brundage Bone and White Cap. 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, Ariwa’s Class C-09 license (No. 225810) and All Arizona’s Class C-09 license (No. 145681) shall be suspended until the ROC receives written proof that Ariwa and All Arizona has provided to the Blanchards lien waivers for all subcontractors that worked on or supplied materials or equipment for the project, and specifically Brundage Bone and White Cap. If the ROC receives written proof that Ariwa and All Arizona have complied with the foregoing condition on or before the date specified above, then the above provided license suspensions shall not take place and the Citations and Complaints in Case Nos. M07-2115 and M07-2115W 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, January 28, 2008.

______________________________________ Sondra J. Vanella Administrative Law Judge

Original transmitted by mail this ____ day of January, 2008, to:

Fidelis V. Garcia, Director Registrar of Contractors 3838 North Central Avenue Phoenix, AZ 85012

By ___________________________

----------------------- [1] A review of the ROC‘s official records revealed that All Arizona’s contracting license was suspended on April 19, 2007 for lack of bond, suspended on July 1, 2007 for nonrenewal, and suspended on August 8, 2007 in Case Number M07-1187. 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