ALJDEC decisions subject to certification as final

09F-1521W-ROC · Registrar of Contractors · 2009-10-21

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: October 13, 2009 APPEARANCES: Glen Hunt and Carolyn Hunt appeared on behalf of Complainant I S E Incorporated. Respondents C S G Wireless, Inc. and Communications Systems Group, Inc., doing business as C S G Wireless, failed to appear. ADMINISTRATIVE LAW JUDGE: Sondra J. Vanella _____________________________________________________________________ The issue presented by this matter is whether Respondents C S G Wireless, Inc. and/or Communications Systems Group, Inc., doing business as C S G Wireless (collectively “CSG”), are 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 July 31, 2009, the Registrar of Contractors issued a Notice of Hearing advising the parties that the scheduled hearing in this matter would convene on October 13, 2009 at 1:00 p.m. On the date and at the time scheduled for the hearing, Glen Hunt and Carolyn Hunt appeared on behalf of Complainant I S E Incorporated (“ISE”). No one appeared on behalf of CSG. The Administrative Law Judge delayed the commencement of the hearing for approximately fifteen minutes to allow for the appearance of CSG, or the receipt of any information that would constitute good cause for CSG’s absence or delay. No such information was received.[1] Therefore, the hearing proceeded in CSG’s absence. FINDINGS OF FACT CSG Wireless Inc. is the holder of a Class AE- license (No. 240762) issued by the Registrar of Contractors (“ROC”).[2] Communications Systems Group, Inc. doing business as CSG Wireless, is the holder of a Class L-67 license (No. 110480) issued by the ROC. Ken McLeod is named as President on the Class AE- license No. 240762, and as qualifying party and corporate officer on the Class L-67 license No. 110480. The business address and telephone number for both CSG entities are the same. CSG, through Mr. McLeod, subcontracted with ISE for ISE to perform structural engineering services for two projects. The first project was for the City of Phoenix in which ISE completed site visits/surveys and prepared structural site assessments and engineered design recommendations for wireless equipment installations at five water treatment sites. ISE performed this work in January 2008. ISE billed CSG $4,000.00 ($800.00 per site) for the work ISE performed. CSG has not paid ISE, notwithstanding that CSG has been paid for all work performed on the project. The second project was for the Havasupai Tribe in which ISE was to evaluate existing tower/communication sites and provide structural status and certification, as well as prepare baseline tower structural models and reports for four sites. ISE performed its work on March 17, 2008 and April 5, 2008, and billed CSG for its services in the amount of $9,000.00 ($2,250.00 per site). CSG has been paid by the Tribe for all work performed by ISE, yet CSG has not paid ISE for the work ISE performed. On September 12, 2008, ISE filed a complaint against CSG with the ROC, alleging that CSG has failed to pay ISE for the services ISE performed on the two projects, in the total amount of $13,000.00. At hearing, ISE submitted into evidence copies of the proposals and invoices submitted to CSG for both projects, as well as email correspondence between the parties, documentation from the Tribe regarding payment made to CSG, and ISE reports and evaluations. See Exhibits 1 through 3. Mr. Hunt also credibly testified consistently with the above delineated Findings of Fact. The Administrative Law Judge finds, based on the weight of the credible evidence of record, that the sum of $13,000.00 is the proper balance due and owing to ISE from CSG for the structural engineering services performed by ISE on the two projects. Notwithstanding repeated attempts and billings over a prolonged period of time, said balance remains unpaid. CONCLUSIONS OF LAW 1. In this proceeding, CSG 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 May 1, 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 ISE met its burden of proof as to both of the ROC 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 CSG failed to pay, when due, the sum of $13,000.00 to ISE. Accordingly, under all of the facts and circumstances presented herein, CSG’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 CSG committed wrongful acts that substantially injured ISE by failing to pay for all of the structural engineering services performed by ISE. Therefore, CSG 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 CSG’s licenses. 7. Upon consideration of all of the facts and circumstances presented by this case, the Administrative Law Judge concludes that CSG’s Class AE- license and Class L-67 license should be suspended. 8. The ROC’s authority in disciplinary matters such as the one presented herein includes the ability to impose reasonable conditions that allow the disciplined contractor to reduce the scope of the disciplinary action taken against it. The Administrative Law Judge deems the exercise of such authority to be appropriate in the instant case, and preferable to imposing discipline against CSG’s licenses without providing a condition to reduce or eliminate same. The Administrative Law Judge concludes that the ROC should suspend CSG’s Class AE- license and Class L-67 license subject to the condition that CSG can avoid such suspension by paying the sum of $13,000.00 to ISE. 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, CSG’s Class AE- license (No. 240762) and Class L-67 license (No. 110480) shall be suspended until the ROC receives written proof that CSG has paid the sum of $13,000.00 to ISE. It is further recommended that if CSG complies with the above- described condition on or before the effective date of the Order entered in this matter, then the aforementioned license suspensions 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 in this matter will be forty (40) days from the date of that certification.

Done this day, October 21, 2009.

______________________________________ Sondra J. Vanella Administrative Law Judge

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

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

By ___________________________

----------------------- [1] At the outset of the hearing, ISE advised the Tribunal that it had received an email from CSG over the weekend requesting a continuance of the scheduled hearing due to medical issues experienced by CSG’s Principal. However, CSG did not file the request with the Office of Administrative Hearings prior to the date and time set for hearing. [2] A review of the ROC’s official records revealed that CSG’s Class AE- license No. 240762 was suspended on July 14, 2008, for lack of a qualifying party. 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