ALJDEC decisions subject to certification as final

09F-2695-ROC · Registrar of Contractors · 2009-10-13

STATE OF ARIZONA OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: September 24, 2009

APPEARANCES: Complainant was represented by its Project Manager Brent Rogers; no one appeared on behalf of Respondents.[1]

ADMINISTRATIVE LAW JUDGE: Eric A. Bryant _____________________________________________________________________

Complainant brings this action to force Respondent to pay a remaining balance for work performed under a subcontract. 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. Complainant agreed that the decision could be made on that record. 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 an order of revocation contingent upon payment of the amount owed. FINDINGS OF FACT 1. Respondent M and G General Contracting, Inc. is the holder of a class KB-01 general dual contracting license (No. 184916) issued by the Registrar of Contractors (“ROC”). That license authorizes Respondent to general contracting on both residential and commercial projects.[2] Respondent’s Qualifying Party is Kenneth Moore. The license is currently suspended for nonrenewal. 2. Complainant is a subcontractor who did work for Respondent on two projects in or about September and October 2007. 3. Complainant provided invoices that show that Complainant has not been fully paid by Respondent. The total amount owed as shown by the record is $4,543.25. CONCLUSIONS OF LAW 1. The burden of proof at an administrative hearing is generally upon a complainant.[3] Further, the standard of proof at hearing is by preponderance of the evidence.[4] 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.[5] Complainant has met that burden. 2. The evidence is sufficient to show that Respondent has violated those statutes cited in the Citation and Complaint. 3. Respondent has failed to pay Complainant $4,543.25 that is due and owing for construction work. 4. A review of current ROC records shows that Respondent’s license is suspended for nonrenewal. 5. The current suspension of Respondent’s license does not preclude discipline. Pursuant to A.R.S. § 32-1154(C), the suspension of the license does not deprive the ROC or this tribunal of jurisdiction and does not render the Registrar powerless to discipline the license in this matter. 6. Respondent’s failure to appear and give an account of its actions is considered a serious breach of Respondent’s duties as a licensed contractor. Therefore, provisional revocation (rather than suspension) is warranted. RECOMMENDED ORDER IT IS RECOMMENDED that Class KB-01 license 184916, held by Respondent M and G General Contracting, Inc. be revoked beginning the effective date of the Registrar’s Order unless Respondent provides written proof of payment of $4,543.25 to Complainant and the Registrar of Contractors accepts such written proof. IT IS FURTHER RECOMMENDED that if Respondent makes full payment on or before the effective date of the Registrar’s Order, and the Registrar accepts such proof of payment, the license revocation shall not take place and case 09-2695 shall be closed. IT IS FURTHER RECOMMENDED that the case against license 231934, held by M and G Home Building, Inc. be dismissed.

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 13th day of October 2009.

Office of Administrative Hearings

______________________________ Eric A. Bryant Administrative Law Judge

Copies mailed this ___ day of October 2009 to:

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

By ___________________________ ----------------------- [1] The evidence presented shows contracts with M and G General Contracting, Inc. and not M and G Home Building, Inc. Thus, M and G Home Building, Inc. is not included in the findings. [2] See, Arizona Revised Statutes § 32-1102 and Arizona Administrative Code R4-9-104 for a description of dual license classifications and scope of work. [3] Utah Construction Company v. Berg et al, 68 Ariz. 285, 205 P.2d 367 (1949). [4] Smith v. Arizona Dept. of Transportation, 146 Ariz. 430, 706 P.2d 756 (App. 1985). [5] Culpepper v. State, 187 Ariz. 431, 437, 930 P.2d 508, 514 (Ct. App. 1996).

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