ALJDEC decisions subject to certification as final

09F-0239-ROC · Registrar of Contractors · 2009-06-04

STATE OF ARIZONA IN THE OFFICE OF ADMINISTRATIVE HEARINGS

FINDINGS OF FACT 1. This matter is scheduled to convene for hearing June 11, 2009, pursuant to the Registrar of Contractors’ (“ROC/Registrar”) Notice of Hearing dated March 24, 2009. 2. On May 5, 2009, Complainant, by and through counsel, filed a Motion for Summary Disposition (“motion”) wherein it asserted, inter alia, that the parties “have already fully litigated before the Maricopa County Superior Court (“Superior Court”) that [Respondent] has failed to pay [Complainant] [and that] [t]he Superior Court entered Judgment against [Respondent] for non-payment on February 13, 2009.” Annexed to the motion as Exhibit A were copies of Complainant’s Motion for Summary Judgment filed with the Superior Court and that Court’s Judgment. 3. In its motion, Complainant further asserted that the following factual issues before this tribunal have already been decided by the Superior Court, i.e., that (1) Respondent retained Complainant under four separate contracts to perform architectural design services on six separate lots in the Eagles Nest subdivision in Fountain Hills, Arizona; (2) Complainant completed all work designated under such contracts; (3) Respondent made part payment to Complainant on such contracts; and, (4) that Respondent has failed to pay Complainant the remaining balance of over $46,000.00 on the contracts. 4. In the aforementioned judgment, the Honorable Brian Hauser entered judgment in favor of Complainant and against Respondent in the amount of $46,224.00, interest accrued through December 18, 2008, of $10,637.58 plus per diem interest of $22.80 accruing from December 19, 2008 until paid. 5. In its motion, Complainant further contends that the “parties have already fully litigated in the Superior Court action all issues relevant to the Registrar of Contractors Complaint, and the Superior Court found [Respondent] liable to [Complainant] for non-payment.” 6. By Minute Entry dated May 7, 2009, Respondent was provided until May 14, 2009, to file a written response. 7. Respondent failed to file a response in the time allotted and, as of the preparation of this Administrative Law Judge Decision, had not objected to the motion.[1]

APPLICABLE LAW The Citation and Complaint issued by the Registrar in Case No. 09- 0239 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 person being substantially injured.

…

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 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(A). 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. Summary judgment (or disposition) is proper when “there is no genuine issue as to any material fact and that the moving party is entitled to summary judgment as a matter of law.” Ariz.R.Civ.P. 56(c). 4. Based on the Complainant’s motion, the Superior Court’s aforementioned Judgment and the lack of any response by Respondent, it is determined and concluded that the issues regarding non-payment of monies due for architectural services performed by Complainant for Respondent on the Eagles Nest properties as set forth in Finding of Fact 3 were and/or could have been litigated by the parties hereto in the Superior Court proceeding and, therefore, are barred by the doctrines of res judicata and collateral estoppel from being re-litigated in this matter. 5. Based on the findings set forth in Conclusion of Law 4, it is determined and concluded that Respondent violated A.R.S. § 32-1154(A) (11) by failing to remit payment to Complainant of the $46,224.00 due on the Eagles Nest projects as well as $10,637.58 of accrued interest through December 18, 2008 plus per diem interest of $22.80 accruing from December 19, 2008 until paid. 6. The foregoing violation is deemed by this tribunal to have been a wrongful act resulting in the substantial injury to Complainant. Therefore, a violation of A.R.S. § 32-1154(A) (7) has been proven as cited.

RECOMMENDED ORDER On the basis of the foregoing, IT IS RECOMMENDED that Complainant’s motion for summary disposition be granted. IT IS FURTHER RECOMMENDED that, commencing on the effective date of the Order entered in this matter, the B license of Respondent be revoked. IT IS FURTHER RECOMMENDED that if Respondent remits and/or tenders the sum of $46,224.00, plus $10,637.58 of accrued interest through December 18, 2008, plus all applicable per diem interest accrued at the rate of $22.80 from December 19, 2008 until paid, the above license revocation shall not take place. IT IS FURTHER RECOMMENDED that, in addition to the above-provided revocation, if any, Respondent’s Class B license be suspended for a period of twenty-one (21) days commencing on the effective date of the Order entered in this matter or the date of the expiration of the referenced revocation, whichever is later. IT IS FURTHER RECOMMENDED that, commencing at the conclusion of the above-referenced suspension, Respondent’s Class B license be placed on disciplinary probation for a period of one (1) year. IT IS FURTHER RECOMMENDED that, in addition to the foregoing, Respondent shall post, within thirty (30) days of the effective date of the Order entered in this matter, an additional surety bond, cash deposit or alternative deposit for a period of twenty-four (24) months, including future renewal periods, in the amount of Ten Thousand Dollars ($10,000.00), such bond or deposit to be in addition to the required surety bond, cash deposit or recovery fund participation set forth in A.R.S. § 32-1152(C). Cash or alternative additional deposits, if utilized, shall be returned only after the expiration of an additional one (1) year period following the above-referenced twenty-four (24) month period and only if no claims are then pending. Respondent’s failure to timely post this additional surety bond, cash deposit or alternative deposit shall result in suspension of Respondent’s license until written proof that Respondent has complied with this requirement is provided to the Registrar.[2] Done this day, June 4, 2009.

________________________ Brian E. Smith Administrative Law Judge

Copy mailed this ____ day of ______________, 2009 to:

William A. Mundell, Director Registrar of Contractors c/o Legal Department 3838 N. Central Ave. Phoenix, AZ 85012 By ___________________________ ----------------------- [1] It must be noted that the referenced Minute Entry was initially mailed to Respondent at P.O. Box 14025, Tempe, Arizona 85284. Such copy was returned as “box closed - unable to forward.” Thereafter, on May 12, 2009, a copy of the Minute Entry was mailed to Respondent at 4385 N. 75th St., Ste. 200, Scottsdale, Arizona 85251 which was returned as “moved - left no address - unable to forward.” A third copy was then sent to Respondent at 1974 E. Todd Dr., Tempe, AZ 85283 which, to date, has not been returned to the Office of Administrative Hearings. [2] 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