ALJDEC decisions subject to certification as final

09F-2383-ROC · Registrar of Contractors · 2009-09-28

STATE OF ARIZONA IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: September 10, 2009 APPEARANCES: Complainant: Mario Cuneo, corporate officer, 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 the Notice of Hearing issued by the Registrar of Contractors (“ROC/Registrar”) on June 11, 2009. 2. Complainant Old Iron Doors West, Ltd. dba Old Iron Doors (“Complainant”) is a corporation doing business in Arizona. Mario Cuneo (“Cuneo”), corporate officer, appeared on behalf of Complainant. 3. Respondent Chipley Luxury Homes, Inc. (“Respondent”) is a corporation which holds Arizona Contractor’s License No. 217740 Class B- (General Residential) issued by the ROC on March 17, 2006. Melinda Ann Chipley is a corporate officer and the qualifying party for the license. 4. Complainant filed a Complaint with the Registrar on October 22, 2008, wherein it alleged non-payment of $4,000.00 for iron work performed and/or materials provided a residence located at 8625 E. Via La Serena, Paradise Valley, Arizona (“premises/project”) including a gate, wine door and railing. 5. On April 23, 2009, the Registrar issued a Citation and Complaint in Case No. 09-2383 charging Respondent with possible violations of A.R.S. § 32-1154 (A) (7) (11). 6. Respondent filed an Answer on April 30, 2009, wherein it alleged, inter alia, that Complainant did not perform its work in a timely manner as a result of which the owner refused to remit full payment to Respondent (as general contractor) and that Complainant had actually been paid more that what was received from the owner. 7. At the hearing, Cuneo testified and submitted Exhibits C-1 through C-6 which were marked, admitted and considered. 8. Respondent failed to appear either by authorized representative or counsel. 9. On the testimony and evidence of record, the following salient facts are important to note: a. On approximately May 25, 2007, Complainant submitted to the owner of the premises, F-Star Development, an estimate to perform iron work on and provide materials and labor to the project for a total of $52,769.44 (Exhibit C-1); b. The estimate was subsequently forwarded to Respondent as the general contractor; c. The scope of the project was subsequently reduced to $23,870.00 (Exhibit C-2); d. Complainant manufactured and installed the gate, wine cellar door and railing in accordance with estimate all of which was completed by March 21, 2008; e. Respondent paid Complainant for the gate and wine cellar door but not for the railing; and, f. Respondent has paid Complainant a total of $23,730.00 leaving an outstanding balance of $4,000.00 (Exhibit C-5)

APPLICABLE LAW The Citation and Complaint issued by the Registrar in Case No. 09- 2383 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 $4,000.00 balance due for iron work performed on and materials provided to Respondent on 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.

RECOMMENDED ORDER On the basis of the foregoing, IT IS RECOMMENDED that, commencing on the effective date of the Order entered in this matter, the B- license of Respondent be suspended until the Registrar receives written proof that Respondent has paid or tendered the sum of $4,000.00 to Complainant as and for the outstanding balance due for iron work performed on and materials provided to Respondent, as general contractor, on the project. IT IS FURTHER RECOMMENDED that if Respondent remits and/or tenders the sum of $4,000.00 to Complainant on of before the effective date of the Registrar’s Order, the above license suspension shall not take place.[1] Done this day, September 28, 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