ALJDEC decisions subject to certification as final

08F-1860-ROC · Registrar of Contractors · 2009-03-17

STATE OF ARIZONA IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: March 17, 2009 APPEARANCES: Complainant was represented by attorney Charles Hultstrand. Respondent failed to appear. ADMINISTRATIVE LAW JUDGE: Michael G. Wales _____________________________________________________________________ Based upon the evidence of record, the Administrative Law Judge makes the following Findings of Fact, Conclusions of Law and Recommended Order:

FINDINGS OF FACT 1. Opt Co Residential Painting, LLC (“Complainant”) is the holder of License No. 208016 issued by the Registrar of Contractors (“Registrar”). 2. Montevina Estate Homes, LLC (“Respondent”) is the holder of License No. 169152, a Class B- contracting license, issued by the Registrar. 3. Respondent hired Complainant to work on various custom homes as well as projects identified as Bella Lago, Cottages at Lakewood, Lone Mountain, and Tuscan Hills in Arizona. 4. Complainant filed a written Complaint with the Registrar alleging that Respondent owed it money for the work completed on the subject homes and projects. The Registrar designated the Complaint as Case No. 08- 1860. 5. The Registrar issued a Citation and Complaint in Case No. 08-1860 alleging possible violations by Respondent of A.R.S. § 32-1154(A)(7) and (11). 6. The Registrar forwarded Case No. 08-1860 to the Office of Administrative Hearings, an independent agency, for an evidentiary hearing. 7. The Registrar issued a Notice of Hearing in Case No. 08-1860 advising the parties of the time, date, and location of the formal hearing. The Notice of Hearing was sent to the parties at their addresses of record with the Registrar. 8. The commencement of the formal hearing was delayed 15 minutes to allow for the late arrival of an authorized representative for Respondent. No one appeared for Respondent. Respondent did not request to appear telephonically. After the delay the Administrative Law Judge conducted the hearing in Respondent’s absence. 9. Credible evidence was presented to prove that Respondent owes Complainant the sum of $174,143.87 for the materials supplied by Complainant and the work completed by Complainant. Complainant has tried to obtain payment from Respondent for over one year. 10. Respondent’s failure to pay the outstanding debt to Complainant is a wrongful act that substantially injured Complainant. Complainant paid for materials and performed work, but Respondent has not paid the outstanding debt. 11. A review of the Registrar’s official records reveals that Respondent’s License No. 169152 was suspended by operation of law for lack of bond on August 30, 2008 and was canceled on November 24, 2008. Further review of the Registrar’s records indicates that the Respondent currently has 13 open complaints. Additionally, a review of the Registrar’s records indicate that the Registrar issued two new licenses to Respondent’s qualifying party Larry Kush, on November 24, 2008, one for The Cottages at Lakewood, LLC, License No. 249557, and one for Montevina Construction, LLC, License No. 249554 on the condition that the newly licensed entities assume any outstanding obligations of Respondent.

CONCLUSIONS OF LAW 1. The Registrar has jurisdiction over Respondent and the subject matter in this case. 2. Pursuant to A.A.C. R2-19-119(B), Complainant has the burden of proof in this matter. The standard of proof is preponderance of the evidence. A.A.C. R2-19-119(A). 3. Respondent violated the provisions of A.R.S. § 32-1154(A)(11), as charged in the Citation and Complaint issued by the Registrar. Respondent has failed to pay Complainant the outstanding balance of $174,143.87. 4. Respondent violated the provisions of A.R.S. § 32-1154(A)(7), as charged in the Citation and Complaint issued by the Registrar. Complainant has been deprived of the use of the earned sum of $174,143.87 by Respondent. 5. Pursuant to A.R.S. § 32-1154(C), the suspension of Respondent’s contracting license does not deprive the Registrar of authority to impose discipline against Respondent for the above-provided statutory violations.

RECOMMENDED ORDER Respondent’s License No. 169152 shall be revoked on the effective date of the Order entered in Case No. 08-1860.

If Respondent pays Complainant the outstanding balance of $174,143.87 on or before the effective date of the Order entered in Case No. 08-1860, then the above-provided license revocation shall not take place, but instead Respondent’s contracting license shall be placed on disciplinary probation for 180 days. This alternative penalty shall commence, if at all, on the effective date of the Order entered in Case No. 08-1860.

. . . . . . . . . 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, March 17, 2009.

Office of Administrative Hearings

__________________________ Michael G. Wales Administrative Law Judge

Original transmitted by mail this ____ day of ____________, 2009, to:

Registrar of Contractors William A. Mundell, Director c/o Legal Department 3838 N. Central Ave. Phoenix, AZ 85012, Director

By ___________________________

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