ALJDEC decisions subject to certification as final

09F-3229-ROC · Registrar of Contractors · 2009-10-01

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: October 1, 2009. APPEARANCES: Boarder Construction Specialties, L.L.C. was represented by its authorized employee, Nicole Burleson. Creative Visions Landscaping, L.L.C. did not appear. ADMINISTRATIVE LAW JUDGE: Brian Brendan Tully _____________________________________________________________________ Based upon the entire record in this matter, the Administrative Law Judge makes the following Findings of Fact, Conclusions of Law, and Recommended Order: FINDINGS OF FACT 1. Creative Visions Landscaping, L.L.C. (“Respondent”) is the holder of License No. 227389, a Class C-21 contracting license issued by the Registrar of Contractors (“Registrar”). 2. On December 4, 2008, Border Construction Specialties, L.L.C. (“Complainant”) filed a written Complaint with the Registrar alleging nonpayment by Respondent on its account with Complainant. Complainant was a supplier to Respondent. Complainant had extended credit to Respondent for purchasing supplies. 3. The Registrar designated the Complaint as Case No. 09-3229. 4. The Registrar issued a Citation and Complaint in Case No. 09-3229 alleging violations by Respondent of A.R.S. § 32-1154(A) (7) and (11). 5. The Registrar forwarded Case No. 09-3229 to the Office of Administrative Hearings, an independent agency, for an evidentiary hearing. 6. The Registrar issued a Notice of Hearing in Case No. 09-3229 advising the parties of the time, date, and location of the formal 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 15 minutes 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 proof to establish that Respondent has an outstanding balance of $6,623.23 in its account with Complainant. The outstanding balance covers the period from February 28, 2008 to September 1, 2009. 9. Respondent’s last payment to Complainant was on November 11, 2008. 10. Respondent’s failure to pay its outstanding balance owed to Complainant is a wrongful act that substantially injured Complainant. 11. A review of the Registrar’s official electronic records reveals that Respondent’s contracting license was suspended by operation of law for lack of bond on February 4, 2009. CONCLUSIONS OF LAW 1. The Registrar has jurisdiction over Respondent and the subject matter in this case. Pursuant to A.R.S. § 32-1154(C), the suspension of Respondent’s contracting license does not deprive the Registrar of authority to impose disciplinary action on Respondent’s contracting license for proven violations in this matter. 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. 227389 shall be revoked on the effective date of the Order entered in Case No. 09-3229. If Respondent pays Complainant the sum of $6,623.23 on or before the effective date of the Order entered in Case No. 09-3229, then the above- provided license revocation shall not take place, but instead Respondent’s License No. 227389 shall be suspended for ten days followed immediately by 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. 09-3229. 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 1, 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