ALJDEC decisions subject to certification as final

09F-3127-ROC · Registrar of Contractors · 2009-10-16

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: September 29, 2009. APPEARANCES: Distinctive Roofing, L.L.C. was represented by its authorized representative, Daniel W. Grifford, Jr. Rock Hard Designs, Inc. was represented by its authorized representative, Joe Schott. 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. Distinctive Roofing, L.L.C. (“Complainant”) is the holder of License No. 180910 issued by the Registrar of Contractors (“Registrar”). 2. Rock Hard Designs, Inc. (“Respondent”) is the holder of License No. 215546, a Class B- contracting license issued by the Registrar. 3. Respondent subcontracted with Complainant for the construction of a roof by Complainant at a residence located at 65524 East Malcomb, Paradise Valley, Arizona. 4. Complainant completed its scope of roof work. However, Respondent failed to pay Complainant in full for its work. 5. Complainant filed a written Complaint with the Registrar alleging nonpayment by Respondent on the subject project. The Registrar designated the Complaint as Case No. 09-3127. 6. The Registrar issued a Citation and Complaint in Case No. 09-3127 alleging violations by Respondent of A.R.S. § 32-1154(A) (7) and (11). 7. The Registrar forwarded Case No. 09-3127 to the Office of Administrative Hearings, an independent agency, for an evidentiary hearing. 8. Respondent originally owed Complainant an outstanding balance of $17,218.00. Complainant recovered $15,000.00 from Respondent’s bond, which left a balance of $2,218.00. 9. Respondent contends that the owner of the subject residence reimbursed the bonding company the sum of $15,000.00. Respondent further contends that payment of the $15,000.00 was supposed to satisfy the entire debt. However, the evidence of record does not support those contentions. 10. At the hearing, Complainant presented evidence that the present outstanding balance owed by Respondent totals $4,106.18, which is calculated as follows: $2218.00 on the original balance; $689.20 for late fees through 11/30/08; $532.32 for late fees through 09/30/09; $583.33 fee for filing mechanic’s lien; and $83.33 fee to file satisfaction of lien. 11. Respondent’s president, Joe Schott, did not dispute the current outstanding balance presented by Complainant. 12. Respondent contends that it does not have the financial ability to pay Complainant the present outstanding balance. However, Respondent failed to present any credible evidence in support of that contention. 13. Respondent’s failure to pay Complainant the present, undisputed outstanding balance of $4,106.18 is a wrongful act resulting in substantial injury to Complainant. 14. A review of the Registrar’s official records reveals that Respondent’s contracting license is active, with only the present Complaint listed against its 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) (7) and (11), 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. 215546 shall be suspended on the effective date of the Order entered in Case No. 09-3127 until the Registrar receives written proof, and the Registrar accepts such proof, that Respondent has either paid Complainant the present outstanding balance of $4,106.18 in full or entered into a mutually agreed upon repayment plan with Complainant. If Respondent provides the Registrar with written proof, and the Registrar accepts such proof, that it has either paid Complainant the sum of $4,106.18 or entered into a mutually agreed upon repayment plan with Complainant on or before the effective date of the Order entered in Case No. 09-3127, then the above-provided license suspension shall not take place. In addition to the foregoing license suspension, if any, Respondent’s License No. 215546 shall be placed on disciplinary probation for a period of 90 days commencing on the effective date of the Order entered in Case No. 09-3127 or the date on which the Registrar approves Respondent’s notice of compliance described above, whichever is later. 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, October 19, 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 ___________________________

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