ALJDEC decisions subject to certification as final

09F-0264-ROC · Registrar of Contractors · 2009-06-10

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: June 2, 2009 APPEARANCES: John Parker, Esq. represented Complainant Inex Creative Floors, Inc. Respondent M and G General Contracting, Inc. failed to appear. ADMINISTRATIVE LAW JUDGE: Sondra J. Vanella _____________________________________________________________________ The issue presented by this matter is whether Respondent M and G General Contracting, Inc. (“M and G”) is subject to discipline for acts or omissions in violation of A.R.S. § 32-1154(A). Based on the evidence of record, the Administrative Law Judge makes the following Findings of Fact, Conclusions of Law, and Recommended Order: Procedural Background On March 19, 2009, the Registrar of Contractors issued a Notice of Hearing advising the parties that the scheduled hearing in this matter would convene on June 2, 2009 at 9:00 a.m. On the date and at the time scheduled for the hearing, John Parker, Esq. represented Complainant Inex Creative Floors, Inc. (“Inex”). No one appeared on behalf of M and G. The Administrative Law Judge delayed the commencement of the hearing for approximately fifteen minutes to allow for the appearance of M and G, or the receipt of any information that would constitute good cause for its absence or delay. No such information was received. Therefore, the hearing proceeded in M and G’s absence. FINDINGS OF FACT M and G is the holder of a Class KB-01 license (No. 184916) issued by the Registrar of Contractors (“ROC”).[1] M and G contracted with Inex for Inex to perform the tile installation for three homes that M and G, as the general contractor, was constructing. Elvir Hodzic is Inex’s qualifying party and corporate officer. The tile installation was performed in the main houses and casitas, and included floor tile, kitchen and bathroom backsplashes, bathtub surrounds, shower tile, and patio tile. Mr. Hodzic credibly testified at hearing that between January 2007 and June 2007, Inex performed its work pursuant to the parties’ contracts and that all three projects have been completed. M and G paid Inex portions of the contract prices for two of the three projects, and failed to make any payments toward the third project. The first project for which M and G contracted with Inex is referred to as the 4835 East Quailbrush project. M and G paid Inex the amount of $30,714.50. However, M and G failed to pay Inex for a change order in the amount of $2,817.35. The second project for which M and G contracted with Inex is referred to as the 8255 East Wood project. M and G paid Inex the amount of $38,068.60. However, M and G failed to pay Inex for a change order in the amount of $1,270.00. The third project for which M and G contracted with Inex is referred to as the 1320 North 83rd Place project. M and G has not paid Inex for any of the work performed by Inex. M and G continues to owe Inex the amount of $57,086.35 for this project. On July 16, 2008, Inex filed three complaints against M and G with the ROC, alleging that M and G failed to pay Inex for the tile installation performed on the three above delineated projects, in the total amount of $61,173.70. At hearing, Inex submitted into evidence copies of the invoices and change orders submitted to M and G for all three projects. See Exhibits 2, 3, 7, 8, 9, 17, and 18. The Administrative Law Judge finds, based on the weight of the credible evidence of record, that the sum of $61,173.70 is the proper balance due and owing to Inex from M and G for the tile installation performed by Inex on the three projects. Notwithstanding repeated attempts and billings over a prolonged period of time, said balance remains unpaid. CONCLUSIONS OF LAW 1. In this proceeding, M and G is subject to discipline for violations of A.R.S. § 32-1154(A)(7) and/or (A)(11) as charged by the ROC in its January 12, 2009 Citation and Complaint. See Arizona Administrative Code R2-19-119. 2. A preponderance of the evidence is “such proof as convinces the trier of fact that the contention is more probably true than not.” Morris K. Udall, Arizona Law of Evidence § 5 (1960). 3. The Administrative Law Judge concludes that Inex met its burden of proof as to both of the ROC’s charges. 4. Under A.R.S. § 32-1154(A)(11), a contractor is subject to discipline for the “failure . . . to pay monies in excess of seven hundred fifty dollars when due for materials or services rendered . . .” The instant record demonstrates that M and G failed to pay, when due, the sum of $61,173.70 to Inex. Accordingly, under all of the facts and circumstances presented herein, M and G’s conduct is found to constitute a violation of A.R.S. § 32-1154(A)(11). 5. Under A.R.S. § 32-1154(A)(7), a contractor is subject to discipline for “the doing of a wrongful or fraudulent act . . . as a contractor resulting in another person being substantially injured.” The Administrative Law Judge concludes, from the evidence presented, that M and G committed wrongful acts that substantially injured Inex by failing to pay for all of the tile installation work performed by Inex. Therefore, M and G violated A.R.S. § 32-1154(A)(7). 6. Based upon the above violations of the provisions of A.R.S. § 32- 1154(A), grounds exist to impose discipline against M and G’s license. 7. Upon consideration of all of the facts and circumstances presented by this case, including M and G’s failure to appear for hearing, and its suspended license status, the Administrative Law Judge concludes that M and G’s Class KB-01 license should be revoked. RECOMMENDED ORDER Based on the foregoing, the Administrative Law Judge makes the following Recommended Order: On the effective date of the Order entered in this matter, M and G’s Class KB-01 license (No. 184916) shall be revoked. 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. Done this day, June 10, 2009.

______________________________________ Sondra J. Vanella Administrative Law Judge

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

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

By ___________________________

----------------------- [1] A review of the ROC’s official records revealed that M and G’s contracting license was suspended on May 1, 2009, for nonrenewal, and suspended on December 11, 2008, for lack of bond. Such suspended license status does not preclude this tribunal from conducting these administrative proceedings. A.R.S. § 32-1154(C).

-----------------------

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