ALJDEC decisions subject to certification as final

08F-A0026-ROC · Registrar of Contractors · 2008-06-12

STATE OF ARIZONA IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: June 12, 2008 APPEARANCES: Complainant: Kim Davis and Tim Davis, corporate officers, 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[1] 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 May 12, 2008. 2. Complainant KT Interiors, Inc. (“Complainant”) is a corporation doing business in Arizona. Kim Davis (“K. Davis”) and Tim Davis (“T. Davis”), corporate officers, appeared on behalf of Complainant. 3. Respondent Page One Construction, Inc. (“Respondent”) is a corporation which holds Arizona Contractor’s License No. 112836, Class B (General Residential) issued by the Registrar of Contractors (“ROC”) April 2, 1996. Johvonn Joseph Zito is a corporate officer and the qualifying party for the license. A review of the licensing database maintained by the Registrar indicates that this license was suspended May 13 to June 21, 1999 (lack of bond), March 23 to April 2, 2008 (lack of bond) and April 1 – 17, 2008 (non-renewal). 4. Complainant filed a complaint with the ROC on July 19, 2007 wherein it alleged non-payment by Respondent of amounts due for floor coverings provided by Complainant on various jobsites.[2] 5. On December 11, 2007, the Registrar issued a CITATION AND COMPLAINT in Case No. A08-0026 charging Respondent with possible violations of A.R.S. §32-1154 A 7 and 11. 6. Respondent filed an answer on January 2, 2008 wherein it alleged, inter alia, that it had received complaints regarding Complainant’s workmanship on several projects. 7. At the hearing, K. Davis testified on behalf of Complainant and submitted Exhibits C-1, C-2, C-3, C-4, C-6, C-7 and C-8 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 with Respondent to install floor coverings in residences located at Lots 5, 6, 29, C-4 and 30 in the Bright Star subdivision, Chino Valley, Arizona. (Exhibits C-3, C-4, C-6, C-7 and C-8) b. The contracts for each lot provided “A FINANCE CHARGE of 1 ½% per month, which is 18% per year, will be charged to past due accounts.” [Emphasis in original] c. Complainant provided labor and materials for the flooring installed in the above-referenced lots as reflected in the applicable statements. d. K. Davis testified that as of the hearing date the outstanding balance due Complainant on the subject contracts, with interest applied, is $13,231.44.[3]

APPLICABLE LAW The CITATION AND COMPLAINT issued by the Registrar of Contractors in Case No. A08-0026 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 $13,231.44 due under the subject contracts, plus applicable interest, for work Complainant performed and/or materials supplied on the subject projects 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 $13,231.44 plus applicable interest 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.

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 B license of Respondent be suspended until the Registrar of Contractors receives written proof that Respondent has paid or tendered the sum of not less than $13,231.44 including interest through June 12, 2008 for flooring work performed and/or materials provided to the subject projects.[4] Done this day, June 12, 2008.

________________________ Brian E. Smith 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 _______________________ ----------------------- [1] The record consists of those documents found within the Registrar of Contractors’ file, the content of which the Administrative Law Judge took Administrative notice, the exhibits offered by the parties and admitted into evidence and the digital record of the proceedings under A.A.C. R2-19- 121. [2] The amount set forth in the complaint is “$12,48.48.” [3] K. Davis testified that the summary statement (Exhibit C-2) reflects an outstanding amount of $13,354.67 from which Complainant deducted certain interest charges from Exhibits C-3 and C-4. [4] 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