ALJDEC decisions subject to certification as final

08F-5020-ROC · Registrar of Contractors · 2009-04-28

STATE OF ARIZONA IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: April 28, 2009 APPEARANCES: Complainant appeared through managing member Daniel Elizondo; 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. Three Hearts Kitchen and Bath, LLC (“Complainant”) is a materials supplier of cabinets and countertops. 2. Hawk Brothers Construction, LLC (“Respondent”) is the holder of License No. 225228, a Class KB-01 contracting license, issued by the Registrar of Contractors (“Registrar”). 3. Respondent hired Complainant to provide cabinets at a project identified as the Journey Church in Peoria, Arizona, and countertops at a project identified as the Christenson Medical Office in Scottsdale, Arizona. 4. Complainant invoiced Respondent on December 8, 2007, in the amount of $3,529.00 for the materials provided at the Journey Church project. Respondent has not made payment. 5. Complainant invoiced Respondent on January 15, 2008, in the amount of $3,177.00 for the materials provided at the Christenson Medical Office project. Respondent has not made payment. 6. Complainant filed a written Complaint with the Registrar alleging that Respondent owed it money for the work completed on the subject projects. The Registrar designated the Complaint as Case No. 08-5020. 7. The Registrar issued a Citation and Complaint in Case No. 08-5020 alleging possible violations by Respondent of A.R.S. § 32-1154(A)(7) and (11). 8. The Registrar forwarded Case No. 08-5020 to the Office of Administrative Hearings, an independent agency, for an evidentiary hearing. 9. The Registrar issued a Notice of Hearing in Case No. 08-5020 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. 10. 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. 11. Credible evidence was presented to prove that Respondent owes Complainant the sum of $6,706.00 for the materials supplied by Complainant. Complainant has tried to obtain payment from Respondent for over one year. 12. Respondent’s failure to pay the outstanding debt to Complainant is a wrongful act that substantially injured Complainant. Complainant provided the materials, but Respondent has not paid the outstanding debt for the materials. 13. A review of the Registrar’s official records reveals that Respondent’s License No. 225228 was suspended by operation of law for nonrenewal on November 1, 2008. Further review of the Registrar’s records indicates that the Respondent currently has 8 open complaints. 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 $6,706.00. 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 $6,706.00 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. 225228 shall be revoked on the effective date of the Order entered in Case No. 08-5020.

If Respondent pays Complainant the outstanding balance of $6,706.00 on or before the effective date of the Order entered in Case No. 08-5020, 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. 08-5020.

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, April 28, 2009.

Office of Administrative Hearings

__________________________ Michael G. Wales Administrative Law Judge

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

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

By ___________________________

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