ALJDEC decisions subject to certification as final

08F-G0127-ROC · Registrar of Contractors · 2008-07-02

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: July 2, 2008. APPEARANCES: A C Electric, Inc. was represented by its president and qualifying party, Cary L. Duncan. ADMINISTRATIVE LAW JUDGE: Brian Brendan Tully _____________________________________________________________________ Based on the evidence of record, the Administrative Law Judge makes the following Findings of Fact, Conclusions of Law and Recommended Order:

FINDINGS OF FACT

1. Ausi’s Builders and Construction, LLC (“Respondent”) is the holder of License No. 228521, a Class B-02 contracting license, issued by the Registrar of Contractors (“Registrar”). 2. A C Desert Electric, Inc. (“Complainant”) is the holder of License No. 145884, a Class K-11 contracting license, issued by the Registrar. 3. On or about July 23, 2007, Complainant filed a written Complaint with the Registrar alleging that Respondent failed to pay it the sum of $1,168.86 for work performed at 9945 W. McDowell Road, Suite 101, Phoenix, Arizona. 4. In response to the Complaint, the Registrar issued a Citation and Complaint in Case No. G08-0127 alleging possible violations by Respondent of A.R.S. § 32-1154(A) (7) and (11). 5. The Registrar forwarded Case No. G08-0127 to the Office of Administrative Hearings, an independent agency, for formal hearing. 6. The Registrar issued a Notice of Hearing in Case No. G08-0127 advising the parties of the time, place, and location of the scheduled hearing. The Notice of Hearing was mailed to the parties at their addresses of record with the Registrar. 7. The commencement of the scheduled hearing was delayed 15 minutes to allow for the late arrival of Respondent’s authorized representative. After the delay the Administrative Law Judge conducted the hearing in Respondent’s absence. 8. On or about May 18, 2007, Complainant submitted a written proposal for providing labor and materials for electrical work on the subject project. 9. Shortly after submitting its proposal, Complainant received a telephone call from Respondent’s president and qualifying party, Steve Ausi, requesting that Complainant put the electrical scope of the project on its schedule. 10. As a result of that telephone call, Respondent issued a work order for three of its employees to begin work on the project. 11. On May 23, 2007, Respondent’s three employees supplied labor and materials to commence rough-in electrical work and temporary power. 12. In the afternoon of May 23, 2007, Complainant’s president and qualifying party, Cary L. Duncan, received a telephone from Mr. Ausi, who informed Mr. Duncan that Complainant had not been awarded the electrical subcontract. Mr. Duncan responded that Complainant had commenced work based upon Mr. Ausi’s prior oral direction. 13. After receiving the telephone call from Mr. Ausi, Mr. Duncan telephoned Complainant’s three workers and directed them to leave the jobsite with their tools and materials. 14. On or about May 29, 2007, Complainant prepared an invoice in the amount of $1,168.86 for labor, materials and taxes for the work performed on May 23, 2007. The invoice was submitted to Respondent. 15. On or about July 2, 2007, Mr. Ausi telephoned Complainant’s staff stating that the invoice was too high. 16. On or about July 6, 2007, a jobsite meeting was scheduled by the parties. Mr. Ausi did not attend the scheduled meeting. 17. Respondent has not paid Complainant’s invoice. 18. Complainant has established an entitlement to payment in the amount of $1,168.86 for the electrical work and materials supplied to Respondent on May 23, 2007. 19. Respondent’s failure to pay Complainant for the work it performed on May 23, 2007 is a wrongful act that substantially injured Complainant. 20. A review of the Registrar’s online records reveals that Complaint No. G08-0127 is the only Complaint against Respondent’s Class B-02 contracting license.

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 cited in the Citation and Complaint issued by the Registrar. The factual basis for this conclusion is Respondent’s failure to pay Complainant for its work. 4. Respondent violated the provisions of A.R.S. § 32-1154(A) (7), as cited in the Citation and Complaint issued by the Registrar. Respondent’s failure to pay Complainant’s invoice has substantially injured Complainant.

RECOMMENDED ORDER

Respondent’s Class B-02 contracting license shall be suspended on the effective date of the Order entered in Case No.G08-0127 until the Registrar receives written proof, and it approves such proof, that Respondent has paid Complainant the sum of $1,168.86. If Respondent pays Complainant the sum of $1,168.86, and the Registrar approves proof of such payment, on or before the effective date of the Order entered in Case No. G08-0127, then the above license suspension shall not take place. In addition to the above-provided license suspension, if any, Respondent’s Class B-02 contracting license shall be placed on probation for a period of 90 days commencing on the effective date of the Order entered in Case No. G08-0127 or the date on which notice and approval of Respondent’s proper compliance with the Order is filed with the Registrar, whichever is later. 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 Oder will be 45 days from the date of that certification. Done this day, July 2, 2008

______________________________________ Brian Brendan Tully Administrative Law Judge

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

Fidelis V. Garcia, Director Registrar of Contractors 3838 N. Central Ave. Phoenix, AZ 85012

By ___________________________ -----------------------

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