ALJDEC decisions subject to certification as final

08F-T1221-ROC · Registrar of Contractors · 2009-03-31

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: March 23, 2009; 1:30 p.m. APPEARANCES: Complainant, Efficient Concrete, Inc. was represented by Mr. Ricardo Soto, Jr., Vice President. Respondents, Select Development, LLC and Select Development and Construction, Inc. were represented by Mr. Brian Neal, Manager. ADMINISTRATIVE LAW JUDGE: Grant Winston _____________________________________________________________________ The administrative hearing of this matter was held in the Office of Administrative Hearings. Testimony was heard and other evidence admitted to the record and based on the entire record the following Findings of Fact, Conclusions of Law and Recommended Order are made. FINDINGS OF FACT 1. Respondent, Select Development, LLC, was during all time material hereto a contractor licensed by and doing business in the State of Arizona, holding Class A License number 193468. That license is now canceled. 2. Respondent, Select Development and Construction, Inc., is, and during all time material hereto was, a contractor licensed by and doing business in the State of Arizona, holding Class A License number 235319. 3. Complainant, Efficient Concrete, Inc. contracted with Respondent, Select Development and Construction, Inc., in November of 2007 for Complainant to perform concrete work at two separate residential projects in Tucson, Arizona. 4. Complainant properly performed the contracted work on both projects, but Respondents failed to pay the Complainant for the work pursuant to the contract. Complainant filed the instant Complaint against the two Respondents on April 10, 2008, seeking an Order from the Registrar directing Respondents to pay the Complainant for the work. 5. Citation and Complaint issued from the Registrar of Contractors on September 24, 2008, citing Respondents with possible violations of A.R.S. § 32-1154.A.7 and 11. Respondent filed an Answer to the Citation and Complaint on October 3, 2008, stating that Respondent had paid Complainant in full on one project and that Complainant had been working for another contractor on the second project, not for the Respondents. 6. The case proceeded to administrative hearing where Complainant’s Vice President, Mr. Ricardo Soto, Jr., and Respondents’ Manager, Mr. Brian Neal, were the only witnesses. 7. The first residential project is known as the Silverbell project. At the hearing it was stipulated that Respondents had, in fact, paid Complainant in full for that job. Payment for Silverbell was no longer an issue. 8. The second project is known as the Stone Crossings project and Complainant claims and credibly testified at the hearing to be owed $9,958.00. Complainant also produced persuasive documentary evidence that it had purchased the materials and performed the work and invoiced Respondent Select Development for the amount claimed. The evidence proved that the Contract was with Respondent Select Development. 9. Respondent contends that Complainant was working for Pathways Development on the Stone Crossings project. Respondent testified that it pulled off that project because it was not being paid by Pathways Development. Pathways Development is notorious in the Tucson community for filing bankruptcy recently and leaving many contractors and customers holding bad debt. In this case, however, it was proven that Complainant had the contractual relationship with these Respondents on both projects in question. 10. Notice is taken of Respondents’ prior license records with the Arizona Registrar of Contractors. Those records reveal that on each of the two licenses Mr. Brian Neal appears as the Qualifying Party and Mr. Brandon Jay Neal as the Principal. CONCLUSIONS OF LAW 1. This administrative hearing was held under authority of and pursuant to A.R.S. § 32-1156, and A.R.S. § 41-1092. 2. Respondents are charged in the instant Citation and Complaint with possible violations of A.R.S. § 32-1154.A.7, and 11. 3. The greater weight of evidence proved that Respondents do owe Complainant the claimed amount of $9,958.00 for work performed on the Stone Crossings project. There is no substantial evidence of any legal defense for the failure to pay. Therefore, Respondents are in violation of A.R.S. § 32-1154.A.11 as set forth in the Citation and Complaint. 4. There is no evidence of any wrongful or fraudulent act in the facts of this case in violation of A.R.S. § 32-1154.A.7 independent of the failure to pay the money owed. RECOMMENDED ORDER In view of the foregoing Findings of Fact and Conclusions of Law it is hereby recommended that Respondent Select Development, LLC’s Class A License 193468, and Respondent Select Development and Construction, Inc’s. Class A License number 235319 be revoked on the effective date of this Order. It is further recommended that in the event the Arizona Registrar of Contractors receives written proof that Respondents have paid the Complainant the $9,958.00 owed on or before the effective date of this Order (40 days after the date of service appearing on the Registrar’s certification on the Order), then the above-provided license revocation shall not occur, and Citations and Complaints T08-1221 and T08-1221(W) shall be closed. In the event of certification of the Administrative Law Judge’s Decision and Order by the Director of the Office of Administrative Hearings, then the effective date of the Order shall be 40 days after the date of that certification. Done this day, March 31st, 2009.

______________________________________ Grant Winston Administrative Law Judge

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

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

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

Office of Administrative Hearings 100 N. Stone Avenue, Suite 704 Tucson, AZ 85701 (520) 628-5488 Fax: (520) 628-5575 www.azoah.com