ALJDEC decisions subject to certification as final

08F-Y0211W-ROC · Registrar of Contractors · 2009-05-19

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: May 7, 2009; 9:00 a.m. APPEARANCES: Complainant Tanner Companies Yuma, Inc. was represented by Ms. Marjorie Harper, Office Manager. Respondents Del Rio Homebuilders, LLC and Ms. Martha A. Palacios doing business as Del Rio Home Builders, LLC were represented by Mr. Esiquio Heredia, Principal and Ms. Martha Palacios., pro per respectively. 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 Del Rio Homebuilders, LLC is and during all time material hereto was a contractor licensed by and doing business in the State of Arizona, holding Class B- License number 222713. Ms. Martha Palacios is the Qualifying Party on that license. Respondent Martha Palacios doing business as Del Rio Home Builders, LLC is also a contractor licensed by and doing business in the State of Arizona, holding Class B- License number 202821. 2. Complainant Tanner Companies Yuma, Inc. (also known as Rinker Materials/Cemex) is a supplier of construction materials. Respondents purchased construction materials from Complainant from August to October, 2006. The construction materials were either delivered by Complainant to Respondent, or picked up by Respondent from Complainant’s business. 3. Respondent failed to pay for the construction materials it ordered and accepted from Complainant on a credit agreement. Complainant filed the instant Complaint against Respondents in the Registrar of Contractors’ office on March 10, 2008 seeking an order directing Respondents to pay the money owed on the account. 4. Citation and Complaint issued from the Registrar of Contractors dated October 16, 2008, citing Respondents with possible violations of A.R.S. § 32-1154.A.7, and 11. Respondents filed a Written Answer to the Citation and Complaint on October 30, 2008. Respondents admitted the debt owed and expressed a willingness to “settle the account as soon as business picks up.” 5. This administrative hearing was held in the Office of Administrative Hearings. Complainant’s Office Manager, Ms. Marjorie Harper, testified credibly and offered several exhibits proving the delinquent account, which were admitted into the record. Respondent, Ms. Martha Palacios, and Principal on Respondent License number 222713, Mr. Esiquio Heredia, testified, also credibly. 6. Ms. Harper’s evidence proved that Respondents owe Complainant $15,964.57. Her evidence proved that repeated demands for payment have been made. Respondents’ testimony and the other documentary evidence support the claim. Respondents admit to owing the amount, but claim that business was poor, and they were unable to pay the Complainant. Ms. Palacios also testified to the efforts by Respondents to pay the debt in installments, and their inability to do that, as well. In fact, the evidence proves that the Respondent issued a check to Complainant in the amount of $3,045.00 on September 28, 2008, which was dishonored by the payor bank for insufficiency of funds in the account. 7. Notice is taken of Respondents’ prior license records with the Arizona Registrar of Contractors. Respondent Class B- License number 222713 is suspended. Respondent Class B- License number 202821 is canceled.

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 credible evidence from all parties proved that Respondents do, in fact, owe Complainant $15,964.57 for materials supplied to Respondents from Complainant in connection with Respondents’ operations as licensed Arizona contractors. Respondents’ evidence is that business was slow, but there is insufficient evidence to prove incapacity to pay. 4. Respondent Del Rio Homebuilders, LLC (License number 222713) is also guilty of a wrongful, act independent of the violation of A.R.S. § 32-1154.A.11, by its issuance of a check for which insufficient funds existed to pay. This is a separate violation of A.R.S. § 32-1154.A.7.

RECOMMENDED ORDER In view of the foregoing Findings of Fact and Conclusions of Law, it is hereby recommended that Respondent Del Rio Homebuilders, LLC, Class B- License number 222713 and Respondent Del Rio Home Builders, LLC, Class B- License number 202821 be revoked on the effective date of this Order. It is further recommended that in the event the Respondents submit written proof to the Registrar, and the Registrar accepts such proof, that they have paid the Complainant $15,964.57, 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 revocations shall not occur and Citation and Complaint Nos. Y08-0211 and Y08-0211(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, May 13, 2009.

______________________________________ Grant Winston 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 ___________________________ -----------------------

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