ALJDEC decisions subject to certification as final

08F-M0626-ROC-rhg · Registrar of Contractors · 2009-04-01

STATE OF ARIZONA IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: April 1, 2009 APPEARANCES: Complainant appeared through authorized employee Robert McPeters; 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. Sunset Fence, Inc. (“Complainant”) is the holder of License No. 155711 issued by the Registrar of Contractors (“Registrar”). 2. Zacher Construction, Inc. (“Respondent”) is the holder of License No. 109019, a Class B- contracting license issued by the Registrar. 3. Respondent hired Complainant to work on various homes sites at a project identified as Reflection Bay at Estrella Mountain Ranch in Maricopa County, Arizona. 4. Complainant filed a written Complaint with the Registrar alleging that Respondent owed Complainant money for the work completed at the request of Respondent. The Registrar designated the Complaint as Case No. M08-0626. 5. The Registrar issued a Citation and Complaint in Case No. M08-0626 alleging possible violations by Respondent of A.R.S. § 32-1154(A)(7) and (11). 6. The Registrar forwarded Case No. M08-0626 to the Office of Administrative Hearings, an independent agency, for an evidentiary hearing. Neither Complainant nor Respondent appeared at the initial hearing on July 31, 2008. 7. The matter was set for the instant rehearing after Complainant petitioned the Registrar of Contractors for a rehearing alleging Complainant had not received notice of the initial hearing. 8. The Registrar issued a Notice of Rehearing in Case No. M08-0626 advising the parties of the time, date, and location of the formal hearing. The Notice of Rehearing was sent to the parties at their addresses of record with the Registrar. 9. The commencement of the instant 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. 10. Credible evidence was presented to prove that Respondent owes Complainant the sum of $56,967.80 for the work completed by Complainant. Complainant has tried to obtain payment from Respondent for over one year. 11. 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. 12. A review of the Registrar’s official records reveals that Respondent’s License No. 109019 was revoked on December 11, 2008 and again on January 12, 2009.

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 $56,967.80. 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 $56,967.80 by Respondent. 5. Pursuant to A.R.S. § 32-1154(C), the prior revocations 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. 109019 shall be revoked on the effective date of the Order entered in Case No. M08-0626.

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 1, 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