ALJDEC decisions subject to certification as final

09F-4524-ROC · Registrar of Contractors · 2009-11-18

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: November 17, 2009 APPEARANCES: Clark Gee appeared on behalf of Complainant West Coast Glass and Mirror Co., Inc., doing business as Mirror Works. Respondent Community Builders, L.L.C., doing business as Metro Community Builders, failed to appear. ADMINISTRATIVE LAW JUDGE: Sondra J. Vanella _____________________________________________________________________ The issue presented by this matter is whether Respondent Community Builders, L.L.C., doing business as Metro Community Builders (“Metro”), is subject to discipline for acts or omissions in violation of A.R.S. § 32- 1154(A). Based on the evidence of record, the Administrative Law Judge makes the following Findings of Fact, Conclusions of Law, and Recommended Order: Procedural Background On August 4, 2009, the Registrar of Contractors issued a Notice of Hearing advising the parties that the scheduled hearing in this matter would convene on October 21, 2009 at 1:00 p.m. On October 16, 2009, Metro submitted a Motion for Continuance through counsel. Metro requested a continuance of the hearing scheduled for October 21, 2009, for the reason that its Principal was at the Mayo Clinic for medical reasons through October 29, 2009. On October 19, 2009, an Order Granting Continuance was issued by the Office of Administrative Hearings advising the parties that the continued hearing would convene on November 17, 2009 at 1:00 p.m. On the date and at the time scheduled for the hearing, Clark Gee appeared on behalf of Complainant West Coast Glass and Mirror Co., Inc., doing business as Mirror Works (“Mirror”). No one appeared on behalf of Metro. The Administrative Law Judge delayed the commencement of the hearing for approximately fifteen minutes to allow for the appearance of Metro, or the receipt of any information that would constitute good cause for its absence or delay. No such information was received. Therefore, the hearing proceeded in Metro’s absence. FINDINGS OF FACT Metro is the holder of a Class KB-01 license (No. 214486) issued by the Registrar of Contractors (“ROC”).[1] Metro contracted with Mirror for Mirror to furnish and install aluminum curtain wall framing and glass to tie into existing conditions at the Metropolitan Lofts in Phoenix, Arizona. Mirror performed the installation of the brake metal, black out film, and caulking. Mirror billed Metro in the amount of $12,576.00 for the work it performed. See Exhibits 3 and 4. On February 20, 2009, Mirror filed a complaint against Metro with the ROC alleging that Metro has failed to pay Mirror for the services Mirror performed, in the total amount of $12,576.00. Mirror submitted into evidence a copy of a fax dated March 5, 2009, on Metro’s letterhead that indicates in pertinent part, “The new owner to be and its lender will review the job proposal and make a final payment to your company upon its completion.” See Exhibit 5. The Administrative Law Judge finds, based on the weight of the credible evidence of record, that the sum of $12,576.00 is the proper balance due and owing to Mirror from Metro for the work performed by Mirror at the Metropolitan Lofts. Notwithstanding repeated attempts and billings over a prolonged period of time, said balance remains unpaid. CONCLUSIONS OF LAW 1. In this proceeding, Metro is subject to discipline for violations of A.R.S. § 32-1154(A)(7), (A)(11), and/or (A)(13) as charged by the ROC in its June 30, 2009 Citation and Complaint. See Arizona Administrative Code R2-19-119. 2. A preponderance of the evidence is “such proof as convinces the trier of fact that the contention is more probably true than not.” Morris K. Udall, Arizona Law of Evidence § 5 (1960). 3. The Administrative Law Judge concludes that Mirror met its burden of proof as to all three of the ROC’s charges. 4. Under A.R.S. § 32-1154(A)(11), a contractor is subject to discipline for the “failure . . . to pay monies in excess of seven hundred fifty dollars when due for materials or services rendered . . .” The instant record demonstrates that Metro failed to pay, when due, the sum of $12,576.00 to Mirror. Accordingly, under all of the facts and circumstances presented herein, Metro’s conduct is found to constitute a violation of A.R.S. § 32-1154(A)(11). 5. Under A.R.S. § 32-1154(A)(13), specifically, A.R.S. § 32- 1124(B), a contractor is required to include its contracting license numbers, preceded by the letters “ROC,” on all documents utilized while engaged in construction-related activities. This requirement is applicable to business cards, sales literature, contract documents, invoices, and other forms utilized by a contractor. Mirror did not address this alleged violation. However, a copy of a fax on Metro’s letterhead was submitted into evidence by Mirror (Exhibit 5). That document does not contain the letters “ROC”, nor does it contain Mirror’s contracting license number. In view of the foregoing, the Administrative Law Judge concludes that Metro violated A.R.S. § 32- 1154(A)(13). 6. Under A.R.S. § 32-1154(A)(7), a contractor is subject to discipline for “the doing of a wrongful or fraudulent act . . . as a contractor resulting in another person being substantially injured.” The Administrative Law Judge concludes, from the evidence presented, that Metro committed a wrongful act that substantially injured Mirror by failing to pay for the work performed by Mirror. Therefore, Metro violated A.R.S. § 32-1154(A)(7). 7. Based upon the above violations of the provisions of A.R.S. § 32- 1154(A), grounds exist to impose discipline against Metro’s license. 8. Upon consideration of all of the facts and circumstances presented by this case, including Metro’s failure to appear for hearing and its revoked license status, the Administrative Law Judge concludes that Metro’s Class KB-01 license should be revoked. RECOMMENDED ORDER In view of the foregoing, it is recommended that Metro’s Class KB-01 license shall be revoked on the effective date of the Order entered in this matter. 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 in this matter will be forty (40) days from the date of that certification. Done this day, November 18, 2009.

/s/ Sondra J. Vanella Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors

----------------------- [1] A review of the ROC’s official records revealed that Metro’s contracting license was revoked on August 3, 2009, in Case No. 09-0483, and then subsequently revoked in Case No. 09-2398. Such revoked license status does not preclude this tribunal from conducting these administrative proceedings. A.R.S. § 32-1154(C).

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