ALJDEC decisions subject to certification as final

07F-P0232-ROC · Registrar of Contractors · 2008-01-16

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: January 15th, 2008; 1:30 p.m. APPEARANCES: Complainant, Complete Electric, was represented by its co-owners, Mr. Don and Ms. Melanie Fillingim. Respondent, Iron Gate Homes, LLC, failed to appear. ADMINISTRATIVE LAW JUDGE: Grant Winston _____________________________________________________________________ The administrative hearing of this matter was held by the Office of Administrative Hearings, Tucson, and via webcam remote broadcast from the Registrar of Contractors, Show Low office. Testimony was heard and other evidence admitted to the record, and, based on the entire record, the following Findings of Fact, Conclusions of Law and Recommended Order are made. FINDINGS OF FACT 1. Respondent herein, Iron Gate Homes, LLC, was formerly a contractor licensed by and doing business in the State of Arizona, having held Class B License number 206186. That license was revoked by the Arizona Registrar of Contractors in November, 2007, in Case No. L07-0276. 2. Complainant, Complete Electric, is an Arizona corporation doing business in the Show Low, Arizona area. It is owned by Mr. Don and Ms. Melanie Fillingim, who appeared and testified at this administrative hearing. 3. Complainant’s Complaint alleges that it properly performed electrical contracting work for Respondent at Respondent’s owner’s personal residence (although the contract was between Complainant and the Respondent business) in Vernon, Arizona. The contract was entered into and the work performed by Complainant in late 2006. The amount of principal due on the contract is $2,320.00. Interest on the unpaid balance, as provided by the contract, through December, 2007, brings the total amount still owed to Complainant to $3,712.00. 4. The testimonial evidence from the Complainant’s owners and their documentary evidence entered into the record, prove that the work was performed and Respondent’s owner, Mr. Donald Carroll, admits as much. However, the written communications between the parties reveal that Mr. Carroll first claimed not to have “received my last draw,” and is “in the process of getting a perm loan on my home.” Mr. Carroll assured Complainant he would pay when he received those monies. 5. Mr. Carroll also asserted, only after Complainant had filed this Complaint, and long after his having moved into the residence, that there were defects in the electrical work that needed corrections. This assertion is not credible, and the testimonies of both Mr. and Ms. Fillingim are credible on that point. 6. The greater weight of evidence proved that Respondent does owe Complainant $3,712.00 for electrical services performed. There is no substantial or credible evidence of any inability of Respondent in the past or presently to pay this debt to Complainant. 7. Notice is taken of Respondent’s prior license record with the Arizona Registrar of Contractors. The Respondent’s subject license was revoked by the Arizona Registrar of Contractors in November, 2007, in Case No. L07-0276. The testimony of Mr. Fillingim includes the assertion that Mr. Donald Carroll’s name appears on other Arizona contractors’ licenses besides the subject license in this case.

CONCLUSIONS OF LAW 1. This administrative hearing was held under authority of and pursuant to A.R.S. 32-1156, and A.R.S. 41-1092. 2. Respondent is charged in the instant Citation and Complaint with possible violations of A.R.S. 32-1154.A.7, and 11. 3. The greater weight of evidence proved that Respondent did violate A.R.S. 32-1154.A11 by failing to pay Complainant more than three thousand dollars, when due, in connection with his activities as a licensed contractor, for materials and service rendered by Complainant, while having the capacity to pay. 4. There is no evidence of any wrongful or fraudulent act by the Respondent in this case in violation of A.R.S. 32-1154.A.7, independent of the violation of A.R.S. 32-1154.A.11.

RECOMMENDED ORDER In view of he foregoing Findings of Fact and Conclusions of Law it is hereby recommended that Respondent’s Class B License number 206186 be again revoked on the effective date of this Order (40 days after the date of service appearing on the Registrar’s certification on the Order). In the event of certification of the Administrative Law Judge’s Decision and Order by the Director of the Office of Administrative Hearings, then the effective date of the Order shall be 40 days from the date of that certification. Done this day, January 16th, 2008.

______________________________________ Grant Winston Administrative Law Judge

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

Registrar of Contractors Fidelis V. Garcia 3838 N. Central Ave., Ste. 400 Phoenix, AZ 85012-1906

By ___________________________

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Office of Administrative Hearings 100 N. Stone Ave., Suite 704 Tucson, Arizona 85701 (520) 628-5488