ALJDEC decisions subject to certification as final

09F-2567-ROC · Registrar of Contractors · 2009-08-27

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: August 27, 2009. APPEARANCES: Palo Verde Plastering, Inc. was represented by its authorized representative, Brenda C. Ferra. 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. Palo Verde Plastering, Inc. (“Complainant”) is the holder of License No. 086989 issued by the Registrar of Contractors (“Registrar”). 2. Shelly Construction, L.L.C. (“Respondent”) is the holder of License No. 115998, a Class B- contracting license issued by the Registrar. 3. On October 30, 2008, Complainant filed a written Complaint with the Registrar alleging that Respondent owed Complainant the total outstanding balance of $22,503.00 for exterior lath and stucco work performed by Complainant on Respondent’s behalf. The Registrar designated the Complaint as Case No. 09-2567. 4. The Registrar issued a Citation and Complaint in Case No. 09-2567 alleging violations by Respondent of A.R.S. § 32-1154(A) (7) and (11). 5. The Registrar forwarded Case No. 09-2567 to the Office of Administrative Hearings, an independent agency, for formal hearing. 6. The Registrar issued a Notice of Hearing in Case No. 09-2567 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. The commencement of the scheduled hearing was delayed to allow for the late arrival of Respondent’s authorized representative. After the delay, the Administrative Law Judge conducted the hearing in Respondent’s absence. 8. Complainant presented credible evidence that Respondent owes it the total sum of $22,503.00 for work performed by Complainant on behalf of Respondent within two years from the date of the filing of the Complaint. 9. Respondent’s failure to pay the above-described outstanding balance owed to Complainant is a wrongful act that substantially injured Complainant. 10. A review of the Registrar’s electronic records reveals that there are open complaints and 8 resolved/settled/withdrawn complaints against Respondent’s Class B- contracting license. Respondent’s license is current. 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) (7) and (11), as cited in the Citation and Complaint issued by the Registrar. RECOMMENDED ORDER Respondent’s License No. 115998 shall be revoked on the effective date of the Order entered in Case No. 09-2567. If Respondent provides the Registrar with written proof that it has paid Complainant the outstanding debt of $22,503.00 on or before the effective date of the Order entered in Case No. 09-2567, and the Registrar accepts such proof of payment, then the above-provided license revocation shall not take place, but instead that Respondent’s Class B- contracting license shall be place on suspension for a period of 5 days, followed immediately by a period of disciplinary probation for a period of 120 days. This alternative penalty shall commence, if at all, on the effective date of the Order entered in Case No. 09-2567. 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 27, 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 ___________________________ -----------------------

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