ALJDEC decisions subject to certification as final

09F-2155-ROC · Registrar of Contractors · 2010-03-08

STATE OF ARIZONA OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: February 25, 2010

APPEARANCES: Complainant appeared on his own behalf with his Office Manager Linda Perkins; no one appeared on behalf of Respondent.

ADMINISTRATIVE LAW JUDGE: Eric A. Bryant _____________________________________________________________________

Complainant brings this action claiming that he is owed over $10,000 from Respondent for construction services and materials Complainant provided as a plumbing subcontractor of Respondent. As noted above, Respondent did not appear at the hearing; therefore, Complainant’s evidence is uncontested. This tribunal entered the complaint file received from the Registrar of Contractors into the record, with the addition of Complainant’s Exhibits A and B.[1] Complainant presented evidence and testimony at the hearing. Based upon the entire record, the Administrative Law Judge makes the following Findings of Fact, Conclusions of Law, and Decision finding violation of the law and recommending that Respondent’s licensed be revoked. FINDINGS OF FACT 1. Respondent Borodkin Construction, LLC is the holder of a class KB- license (No. 207058), a dual building contractor’s license issued by the Registrar of Contractors (“ROC”). It authorizes Respondent to perform general residential and general commercial construction. Mark Borodkin is Respondent’s Qualifying Party. 2. Complainant is a plumbing subcontractor licensed to install plumbing in commercial buildings. Respondent hired Complainant to do the plumbing for “Shop A” and the “Fitness Center” at Camelback 101 Plaza. Complainant performed the work, providing materials and labor. 3. Respondent did not complete payment for Complainant’s work. The owner of the project paid the remainder due on the Fitness Center, but there is still a substantial amount owed for Shop A. 4. Exhibits A and B show the amounts owed. Exhibit A shows that Respondent owes a balance of $11,919.90 for Shop A. Exhibit B shows that Respondent owes $4,621.00 of interest on the remaining balance. Together they equal $16,540.90. 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. Although several citations are given in the Citation and Complaint, this case focuses on the “no pay’ provision found in Arizona Revised Statutes (A.R.S.) § 32-1154(A)(11) that prohibits the failure of a licensee to pay monies in excess of $750 “when due for materials or services” when the licensee has the capacity to pay or when the licensee has been paid for the project. 3. The evidence is sufficient to show that Respondent has violated the no pay provision. Respondent owes Complainant $16,540.90 in principal and interest. 4. A review of current ROC records shows that Respondent’s license was revoked in November 2009 after a disciplinary hearing. 5. The revocation of Respondent’s license does not preclude further discipline. Pursuant to A.R.S. § 32-1154(C), the revocation of a license does not deprive the ROC or this tribunal of jurisdiction and does not render the Registrar powerless to discipline the license further. Thus, multiple disciplinary actions on the same license are possible. 6. Respondent’s license is already revoked. It would be futile to revoke it again should Respondent fail to pay what is owed to Complainant. Therefore, only another revocation makes sense in this matter. RECOMMENDED ORDER IT IS RECOMMENDED that Class KB-01 license 207058, held by Borodkin Construction, LLC, be revoked beginning the effective date of the Registrar’s Order.

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 8th day of March 2010.

Office of Administrative Hearings

/s/ Eric A. Bryant Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors ----------------------- [1] Exhibit A, showing the principal amount owed, was received at hearing. Exhibit B, showing the calculation of interest, was filed the day after the hearing by leave of the Administrative Law Judge. [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] See Culpepper v. State, 187 Ariz. 431, 437, 930 P.2d 508, 514 (Ct. App. 1996) (moving party bears burden of proof by preponderance of evidence in an administrative hearing).

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