ALJDEC decisions subject to certification as final

09F-0920-ROC · Registrar of Contractors · 2009-07-06

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: June 23, 2009 APPEARANCES: Richard Adinolfi appeared on behalf of Complainant Bedrock Stone Company. David Nairne appeared on behalf of Respondent Odyssey Builders, L.L.C. ADMINISTRATIVE LAW JUDGE: Sondra J. Vanella _____________________________________________________________________ The issue presented by this matter is whether Respondent Odyssey Builders, L.L.C. (“Odyssey”) 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: FINDINGS OF FACT Odyssey is the holder of a Class B- license (No. 153353) issued by the Registrar of Contractors (“ROC”). [1] On April 23, 2008, Complainant Bedrock Stone Company (“Bedrock”) supplied landscape material to Odyssey. The cost of the material was $973.91. On May 8, 2008, Bedrock sent an invoice to Odyssey in the amount of $973.91. Odyssey did not pay the invoice. Bedrock made several attempts to collect the monies due. However, Odyssey continued in its failure to pay the invoice. On August 14, 2008, Bedrock filed a complaint against Odyssey with the ROC, alleging that Odyssey failed to pay Bedrock in the amount of $973.91 for landscape materials supplied to Odyssey. At hearing, Richard Adinolfi, Bedrock’s representative, testified consistently with the above-delineated findings of fact. Mr. Adinolfi further testified that he made numerous telephone calls to Odyssey and spoke with Odyssey’s representatives in an attempt to secure payment from Odyssey. However, Odyssey was non-responsive to Bedrock’s requests for payment. David Nairne, Odyssey’s Project Manager, testified that Odyssey does not dispute the debt and acknowledges its obligation to Bedrock. However, Odyssey does not presently have the funds to pay Bedrock. Mr. Nairne testified that Odyssey’s bank financing ceased in May 2008, that Odyssey is $5 million in debt, and no longer in business. The Administrative Law Judge finds, based on the weight of the credible evidence of record, that the sum of $973.91 is the proper balance due and owing to Bedrock from Odyssey for the materials supplied to Odyssey. Notwithstanding repeated attempts and billings over a prolonged period of time, said balance remains unpaid. CONCLUSIONS OF LAW In this proceeding, Bedrock bears the burden to prove, by a preponderance of the evidence, that Odyssey 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 February 5, 2009 Citation and Complaint. See Arizona Administrative Code R2-19-119. 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). The Administrative Law Judge concludes that Bedrock met its burden of proof as to both of the ROC’s charges. 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 Odyssey failed to pay, when due, the sum of $973.91 to Bedrock. Accordingly, under all of the facts and circumstances presented herein, Odyssey’s conduct is found to constitute a violation of A.R.S. § 32-1154(A)(11). 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 Odyssey committed a wrongful act that substantially injured Bedrock by failing to pay for the materials supplied by Bedrock. Therefore, Odyssey violated A.R.S. § 32-1154(A)(7). Based upon the above violations of the provisions of A.R.S. § 32- 1154(A), grounds exist to impose discipline against Odyssey’s license. Upon consideration of all of the facts and circumstances presented by this case, including Odyssey’s suspended license status, the Administrative Law Judge concludes that Odyssey’s Class B- 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, Odyssey’s Class B- license (No. 153353) 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, July 6, 2009.

______________________________________ Sondra J. Vanella Administrative Law Judge

Original transmitted by mail this ____ day of July, 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 Odyssey’s contracting license was suspended on January 16, 2009, for lack of qualifying party, and suspended on February 21, 2009, for lack of bond. Such suspended license status does not preclude this tribunal from conducting these administrative proceedings. A.R.S. § 32-1154(C).

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