ALJDEC decisions subject to certification as final

09F-2474-ROC · Registrar of Contractors · 2009-08-13

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: August 13, 2009. APPEARANCES: Falco Plumbing, Inc. was represented by its vice president, Susan Newsome. Shelly Construction, L.L.C. did not appear. ADMINISTRATIVE LAW JUDGE: Brian Brendan Tully _____________________________________________________________________ Based upon the evidence of record, the Administrative Law Judge makes the following Findings of Fact, Conclusions of Law, and Recommended Order: FINDINGS OF FACT 1. Shelly Construction, L.L.C. (“Respondent”) is the holder of License No. 115998, a Class B- contracting license issued by the Registrar of Contractors (“Registrar”). 2. Falco Plumbing, Inc. (“Complainant”) is the holder of License No. 166582 issued by the Registrar. 3. Complainant filed a written Complaint with the Registrar alleging nonpayment by Respondent in the total amount of $136,618.34 for work performed by Complainant for Respondent on various projects. The Registrar designated the Complaint as Case No. 09-2474. 4. The Registrar issued a Citation and Complaint in Case No. 09-2474 alleging violations by Respondent of A.R.S. § 32-1154(A) (7), (11), and (13), specifically A.R.S. § 32-1124(B). 5. The Registrar forwarded Case No. 09-2474 to the Office of Administrative Hearings, an independent agency, for formal hearing. 6. The Registrar issued a Notice of Hearing in Case No. 09-2474 advising the parties of the time, date, and location of the evidentiary hearing. The Notice of Hearing was sent to the parties at their addresses of record with the Registrar. 7. On August 12, 2009, Kevin Neill, Respondent’s Chief Financial Officer, filed a letter advising the tribunal and Complainant that no one would appear at the hearing representing Respondent. 8. Notwithstanding the August 12, 2009 filing by Respondent, the commencement of the scheduled hearing was delayed to allow for the late arrival of an authorized representative for Respondent. After the delay, the Administrative Law Judge conducted the hearing in Respondent’s absence. 9. At the time the Complaint was filed, Respondent owed Complainant the total sum of $136,618.34. Since that time, Respondent has paid Complainant the sum of $1,750.00 for one lot. Therefore, the remaining unpaid balance owed by Respondent to Complainant is $134,868.34.[1] 10. Respondent’s failure to pay the outstanding balance of $134,868.34 to Complainant is a wrongful act that substantially injured Complainant. 11. Respondent failed to list its contracting license number on contracts with Complainant. 12. A review of the Registrar’s official electronic records reveals that Respondent’s License No. 115998 is current. There are 20 open complaints and 8 resolved/settled/disciplined complaints listed against the license. CONCLUSIONS OF LAW 1. The Registrar has jurisdiction over Respondent and the subject matter in this case. 2. Pursuant to A.A.C. R2-19-119(B), Complainant has the burden of proof in this matter. The standard of proof is preponderance of the evidence. A.A.C. R2-19-119(A). 3. Respondent violated the provisions of A.R.S. § 32-1154(A) (11), as cited in the Citation and Complaint issued by the Registrar. The above Findings of Fact support this conclusion. 4. Respondent violated the provisions of A.R.S. § 32-1154(A) (7), as cited in the Citation and Complaint issued by the Registrar. The above Findings of Fact support this conclusion. 5. Respondent violated the provisions of A.R.S. § 32-1154(A) (13), specifically A.R.S. § 32-1124(B), as cited in the Citation and Complaint issued by the Registrar. The above Findings of Fact support this conclusion. RECOMMENDED ORDER Respondent’s License No. 115998 shall be revoked on the effective date of the Order entered in Case No. 09-2474. If Respondent pays Complainant the sum of $134,868.34 and provides the Registrar written proof of its compliance with the provisions of A.R.S. § 32-1124(B), and the Registrar accepts such proof, on or before the effective date of the Order entered in Case No. 09-2474, then the above- provided license revocation shall not take place, but instead Respondent’s Class B- license shall be suspended for a period of five days followed immediately by a period of disciplinary probation for 120 days. This alternative penalty shall commence, if at all, on the effective date of the Order entered in Case No. 09-2474. 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 day, August 13, 2009

______________________________________ Brian Brendan Tully 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] Complainant has incurred additional expenses relative to this debt, but those expenses are outside the scope of the Complaint.

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