ALJDEC decisions subject to certification as final

09F-1519-ROC · Registrar of Contractors · 2009-10-09

STATE OF ARIZONA IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: October 9, 2009 APPEARANCES: Complainant: Dan Grifford, member, appeared, pro per. Respondent: Respondent failed to appear either through authorized representative or counsel. ADMINISTRATIVE LAW JUDGE: Brian E. Smith _____________________________________________________________________ Evidence and testimony were presented and, based on the entire record in this matter, the following Findings of Fact, Conclusions of Law and Recommended Order are made:

FINDINGS OF FACT 1. This matter convened for hearing at the time, date and place set forth in this tribunal’s August 3, 2009 Order Granting Continuance. 2. Complainant Distinctive Roofing, L.L.C. (“Complainant”) is a limited liability company doing business in Arizona. Dan Grifford (“Grifford”), member, appeared on behalf of Complainant. 3. Respondent A A and J Builders, L.L.C. (“Respondent”) is a limited liability company which holds Arizona Contractor’s License No. 215285, Class KB-01 (Dual Building) issued by the Registrar of Contractors (“ROC/Registrar”) on December 31, 2005. A review of the licensing database maintained by the ROC indicates that its last qualifying party, Don Marvin McElwain, resigned September 15, 2008, the license was suspended November 14, 2008 for lack of a qualifying party and November 20, 2008, for lack of bond and revoked August 11, 2009 (09-0238). 4. Complainant filed a Complaint with the Registrar on September 8, 2008, wherein it alleged non-payment of $7,907.95 for roofing work performed on a project located at 8838 S. 2nd Avenue, Phoenix, Arizona (“premises/project”). 5. On March 10, 2009, the Registrar issued a Citation and Complaint in Case No. 09-1519 charging Respondent with possible violations of A.R.S. § 32-1154 (A) (7) and (11). 6. Respondent filed an Answer on March 25, 2009, wherein it alleged, inter alia, that the project’s owner negotiated contract terms with Complainant outside of its (Complainant’s) contract with Respondent including a “charitable credit” and the owner removed Respondent from the project July 25, 2008, with over $500,000.00 due and owing. 7. At the hearing, Grifford testified on behalf of Complainant and submitted Exhibit A which was marked, admitted and considered. 8. Respondent failed to appear either through authorized representative or counsel. 9. On the uncontroverted evidence and credible testimony of record, the following salient facts are important to note: a. On December 18, 2007, the parties entered into a Contract (“Contract”) whereby Complainant was to perform roofing work and provide materials to the project for a total sum of $27,278.00, $3,000.00 of which was to be manifested by a “charitable receipt in exchange for donation of cost reduction” (Exhibit A); b. Pursuant to the Contract, Complainant performed the required roofing work on and provided materials to the project during the course of which submitted invoices to Respondent reflecting such work and materials; c. Complainant was never provided the above-referenced $3,000.00 charitable receipt which was to be credited to the total amount of the Contract; d. Paragraph 8 of the Terms and Conditions of the Contract specifically provided for a two percent (2%) per month finance charge on any unpaid balance; e. As of June 18, 2008, there remained due and owing Complainant a principal balance of $7,907.95 under the Contract; and, f. As of the date of the hearing herein, finance charges of $158.33 per month for fifteen (15) months, or $2,374.95, had accrued and are due and owing.

APPLICABLE LAW The Citation and Complaint issued by the Registrar in Case No. 09- 1519 charged Respondent with possible violations of A.R.S. § 32-1154 (A) (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. It is determined and concluded that Complainant established by a preponderance of credible, probative and relevant evidence that Respondent violated A.R.S. § 32-1154 (A) (11) by failing to remit payment to Complainant of the total sum of $10,282.90 ($7,907.95 in principal and $2,374.95 in finance charges) for roofing work performed on and materials provided to Respondent for the project. 5. 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. 6. This tribunal determines and concludes that Respondent failed to act in good faith regarding fulfilling its financial obligations to Complainant under the Contract which lack of good faith is further manifest by its failure to appear at the instant hearing. 7. This tribunal further determines and concludes that Respondent’s prior disciplinary revocation in Case No. 09-0238 shall serve as a factor in aggravation in this matter.

RECOMMENDED ORDER On the basis of the foregoing, IT IS RECOMMENDED that, commencing on the effective date of the Registrar’s Order entered in this matter, the KB- license of Respondent be revoked.[1] Done this day, October 9, 2009.

_______________________ Brian E. Smith 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 ___________________________ ----------------------- [1] 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