ALJDEC decisions subject to certification as final

09F-1202-ROC · Registrar of Contractors · 2009-09-25

STATE OF ARIZONA OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: September 8, 2009

APPEARANCES: Complainant was represented by its President Clark Gee; no one appeared on behalf of Respondent.

ADMINISTRATIVE LAW JUDGE: Eric A. Bryant _____________________________________________________________________

Complainant brings this action to force Respondent to pay for materials provided and work performed on a construction project. As noted above, Respondent did not appear at the hearing; therefore, Complainants’ evidence is uncontested. This tribunal entered the complaint file received from the Registrar of Contractors into the record. Complainant agreed that the decision could be made on that record. Based upon the entire record, the Administrative Law Judge makes the following Findings of Fact, Conclusions of Law, and Decision finding that Respondent owes Complainant $4,708.00. FINDINGS OF FACT 1. Respondent Bellamonte Homes, Inc. is the holder of a class B- general residential contracting license (No. 130033) issued by the Registrar of Contractors (“ROC”). That license authorizes Respondent to perform general residential construction of a structure or appurtenance, except for certain specialty contracting such as electrical, plumbing, swimming pools, etc.[1] Respondent’s Qualifying Party is Adolph Gustavo Banuet, Jr. The license is currently suspended for non-renewal. 2. Complainant holds a license to do glazing work. In February 2008, Respondent hired Complainant to install and furnish mirrors on a project Respondent was building. The total contract price was $4,708.00. 3. The evidence shows that Respondent has paid nothing on the contract. CONCLUSIONS OF LAW 1. The burden of proof at an administrative hearing is generally upon a complainant.[2] Further, the standard of proof at hearing is by preponderance of the evidence.[3] Therefore, Complainant bears the burden of showing, by a preponderance of the evidence, that Respondent has violated the statutes cited in the Citation and Complaint.[4] Complainant has met that burden. 2. The evidence is sufficient to show that Respondent has violated those statutes cited in the Citation and Complaint; namely A.R.S. § 32- 1154(A)(7) and (A)(11). 3. Respondent has failed to pay Complainant $4,708.00 that is due and owing for construction work. 4. A review of current ROC records shows that Respondent’s license is under suspension for failure to renew on January 1, 2009. 5. Respondent’s failure to appear and give an account of its actions is considered a serious breach of Respondent’s duties as a licensed contractor. Therefore, provisional revocation (rather than suspension) is warranted. RECOMMENDED ORDER IT IS RECOMMENDED that Class B- license ROC130033, held by Respondent Bellamonte Homes, Inc. be revoked beginning the effective date of the Registrar’s Order until Respondent provides written proof of payment of $4,708.00 to Complainant and the Registrar of Contractors accepts such written proof. IT IS FURTHER RECOMMENDED that if Respondent makes full payment on or before the effective date of the Registrar’s Order, and the Registrar accepts the written proof of that payment, the license revocation shall not take place.

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 will be 40 days from the date of that certification.

Done this 25th day of September 2009.

Office of Administrative Hearings

______________________________ Eric A. Bryant Administrative Law Judge

Copies mailed this ___ day of September 2009 to:

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

By ___________________________ ----------------------- [1] See, Arizona Revised Statutes § 32-1102 and Arizona Administrative Code R4-9-103 for a description of residential license classifications and scope of work. [2] Utah Construction Company v. Berg et al, 68 Ariz. 285, 205 P.2d 367 (1949). [3] Smith v. Arizona Dept. of Transportation, 146 Ariz. 430, 706 P.2d 756 (App. 1985). [4] Culpepper v. State, 187 Ariz. 431, 437, 930 P.2d 508, 514 (Ct. App. 1996).

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