ALJDEC decisions subject to certification as final

09F-4020-ROC · Registrar of Contractors · 2009-12-11

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: December 11, 2009 APPEARANCES: Mustang Plumbing and Rooter Service, Inc. was represented by its qualifying party, Kirk Kruse. Troon Construction, L.L.C. was represented by its qualifying party, Ray Garcia. 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. Mustang Plumbing and Rooter Service, Inc. (“Complainant”) is the holder of License No. 098469, a Class C-37R contracting license issued by the Registrar of Contractors (“Registrar”). 2. Troon Construction, L.L.C. (“Respondent”) is the holder of License No. 166482, a Class B-01 contracting license issued by the Registrar. 3. On January 21, 2009, Complainant filed a written Complaint with the Registrar alleging nonpayment by Respondent in the amount of $30,042.67 for work Complainant performed for Respondent on a commercial project located at 2737 W. Thunderbird, Suite 101, Phoenix, Arizona. 4. The Registrar designated Complainant’s Complaint as Case No. 09-4020. 5. The Registrar issued a Citation and Complaint in Case No. 09-4020 alleging violations by Respondent of A.R.S. § 32-1154(A) (7) and (11). 6. The Registrar forwarded Case No. 09-4020 to the Office of Administrative Hearings, an independent agency, for an evidentiary hearing. 7. The parties entered into a written subcontract dated October 20, 2007. Complainant performed plumbing work for Respondent. Complainant completed its scope of work on the subject property on January 30, 2008. 8. Respondent does not dispute that Complainant did the work on the subject project and that Complainant is entitled to the claimed amount owed. 9. Respondent claims that the subject property owner owes Respondent part of the remaining contract price. Respondent filed a civil lawsuit against the property owner for the outstanding amount due and owing. 10. Respondent acknowledges having received some payment from the property owner, but Respondent used those funds to pay other vendors and supplies. 11. Respondent has paid Complainant nothing under the parties’ subcontract. 12. Respondent contends that it lacks the current ability to pay Complainant. Respondent’s landlord has locked Respondent out of its office. 13. Respondent is found to have had the ability to pay Complainant an amount in excess of $750.00 for the work Complainant performed. After receiving a payment from the property owner, Respondent elected to pay others but not Complainant. 14. Respondent’s failure to pay Complainant an amount in excess of $750.00 is a wrongful act resulting in substantial injury to Complainant. 15. A review of the Registrar’s official electronic records reveals that Respondent’s License No. 166482 has been suspended by operation of law for lack of bond since November 11, 2009. There are 3 open complaints and 12 resolved/settled/withdrawn complaints listed against Respondent’s contracting license. CONCLUSIONS OF LAW 1. The Registrar has jurisdiction over Respondent and the subject matter in this case. 2. Pursuant to A.R.S. § 32-1154(C), the suspension of Respondent’s contracting license by operation of law does not deprive the Registrar of the authority to impose discipline against Respondent’s license for proven statutory violations in this matter. 3. 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). 4. Respondent violated the provisions of A.R.S. § 32-1154(A) (7) and (11), as charged in the Citation and Complaint issued by the Registrar. The above Findings of Fact support this conclusion. RECOMMENDED ORDER Respondent’s License No. 166482 shall be revoked on the effective date of the Order entered in Case No. 09-4020. If Respondent pays Complainant the outstanding balance owed of $30,042.67 on or before the effective date of the Order entered in Case No. 09-4020, then the above-provided license revocation shall not take place, but instead Respondent’s contracting license shall be placed on suspension for a period of five days followed immediately by a period of disciplinary probation for 180 days. This alternative penalty shall commence, if at all, on the effective date of the Order entered in Case No. 09-4020. 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, December 30, 2009.

/s/ Brian Brendan Tully Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors -----------------------

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