ALJDEC decisions subject to certification as final

09F-6024-ROC · Registrar of Contractors · 2010-02-19

STATE OF ARIZONA OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: February 19, 2010

APPEARANCES: Complainant was represented by attorney Margaret Gillespie, accompanied by its President Joe Engel; no one appeared on behalf of Respondent.

ADMINISTRATIVE LAW JUDGE: Eric A. Bryant _____________________________________________________________________

Complainant brings this action to force Respondent K D Door to pay a remaining balance due for materials supplied to Respondent for construction- related work. 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, along with marked Exhibits 1, 2, 3, and 4. Complainant presented evidence and testimony. Based upon the entire record, the Administrative Law Judge makes the following Findings of Fact, Conclusions of Law, and Decision finding a violation the contracting statutes. FINDINGS OF FACT 1. Respondent K D Door, LLC is the holder of a class K-05 specialty dual contracting license (No. 171723) issued by the Registrar of Contractors (“ROC”). That license is a restricted license and authorizes Respondent to perform work only as to overhead doors and openers.[1] Kenneth Firestine is Respondent’s Qualifying Party. The license is currently suspended for nonrenewal in February 2010. 2. Complainant is a material supplier. Complainant supplied materials to Respondent that were installed on projects Respondent was building. Complainant was not paid. 3. On April 20, 2009, Complainant obtained a Default Judgment against Respondent from Maricopa County Superior Court in an amount over $26,000.[2] Paul Noe testified that this Default Judgment was based on the same facts as those presented in the ROC complaint. This evidence is uncontested. 5. Complainant’s evidence shows that Respondent owes $24,053.79 to Complainant for construction materials and interest.[3] The Default Judgment establishes a debt that has not been paid. 6. Respondent’s failure to appear at the hearing and account for its actions is considered a circumstance in aggravation of any violation that is found below. CONCLUSIONS OF LAW 1. The burden of proof at an administrative hearing is generally upon a complainant.[4] Further, the standard of proof at hearing is by preponderance of the evidence.[5] 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.[6] Complainant has met that burden. 2. The evidence shows a violation of Arizona Revised Statutes (“A.R.S.”) § 32-1154(A)(11) for failure to pay more than $750.00 when due for services rendered in connection with Respondent’s operation as a contractor. 3. Respondent’s license is currently suspended for non-renewal. 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. 4. The appropriate discipline is an order that Respondent must pay the unpaid portion of the award (excluding costs) in the amount of $39,031.68 or face revocation of the license. RECOMMENDED ORDER IT IS RECOMMENDED that Class K-05 license 171723, held by Respondent K D Door, LLC be revoked beginning the effective date of the Registrar’s Order unless the Registrar receives written proof of payment to Complainant of $24,053.79, and the Registrar of Contractors accepts such written proof. IT IS FURTHER RECOMMENDED that if Respondent provides such written proof on or before the effective date of the Registrar’s Order, and the Registrar accepts such written proof, the license revocation shall not take place and case 09-6024 shall be closed.

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 19th day of February 2010.

Office of Administrative Hearings

/s/ Eric A. Bryant Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors ----------------------- [1] See, Arizona Revised Statutes § 32-1102 and Arizona Administrative Code R4-9-104 for a description of dual license classifications and scope of work. The restricted scope of Respondent’s license is described on the ROC website. [2] Exhibit 1. The Judgment amount includes attorneys’ fees and costs which are not recoverable as restitution. [3] This amount does not include attorneys’ fees and costs but does include interest at a rate Respondent agreed to pay in its credit application to Complainant. Exhibit 4. [4] Utah Construction Company v. Berg et al, 68 Ariz. 285, 205 P.2d 367 (1949). [5] Smith v. Arizona Dept. of Transportation, 146 Ariz. 430, 706 P.2d 756 (App. 1985). [6] See Culpepper v. State, 187 Ariz. 431, 437, 930 P.2d 508, 514 (Ct. App. 1996) (moving party bears burden of proof by preponderance of evidence in an administrative hearing).

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