ALJDEC decisions subject to certification as final

09F-6194-ROC · Registrar of Contractors · 2010-01-13

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: January 6, 2010 APPEARANCES: Complainant Kent Hazlett appeared on his own behalf. Respondent Architectural Wood Interiors, Inc. failed to appear. ADMINISTRATIVE LAW JUDGE: Sondra J. Vanella _____________________________________________________________________ The question presented by this matter is whether Respondent Architectural Wood Interiors, Inc. (“AWI”) 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 November 10, 2009, the Registrar of Contractors issued a Notice of Hearing advising the parties that the scheduled hearing in this matter would convene on January 6, 2010 at 8:00 a.m. On the date and at the time scheduled for the hearing, Complainant Kent Hazlett appeared on his own behalf. No one appeared on behalf of AWI. The Administrative Law Judge delayed the commencement of the hearing for approximately fifteen minutes to allow for the appearance of AWI, 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 AWI’s absence. FINDINGS OF FACT 1. AWI is the holder of a Class C-30 license (No. 240066) issued by the Registrar of Contractors (“ROC”).[1] 2. Mr. Hazlett was employed by AWI from October 2008 through May 2009, as an installer of finish carpentry. Mr. Hazlett’s hourly wage was $20.00. During the course of his employment, AWI issued several NSF payroll checks to Mr. Hazlett, and failed to pay Mr. Hazlett for all of the weeks and/or hours that he worked and for which he was entitled to receive payment. 3. On June 3, 2009, Mr. Hazlett filed a complaint against AWI with the ROC alleging that AWI has failed to pay him for all of the work he performed, in the total amount of $3,626.70. 4. At hearing, Mr. Hazlett credibly testified that AWI owes him for 161 hours of unpaid wages for work performed for AWI during the entire month of January 2009, as well as wages for two partial weeks in February 2009, as well as bank fees of $85.00 for NSF checks, for a total amount of $3,626.70. 5. Due to AWI’s failure to appear for hearing, it did not present any controverting evidence. 6. The Administrative Law Judge finds, based on the weight of the credible evidence of record, that the sum of $3,626.70 is the proper balance due and owing to Mr. Hazlett from AWI for the finish carpentry installation performed by Mr. Hazlett during the course of his employment with AWI, and for the bank fees associated with the NSF checks issued by AWI. Notwithstanding repeated requests for payment over a prolonged period of time, said amount remains unpaid. CONCLUSIONS OF LAW 1. In this proceeding, AWI is subject to discipline for violations of A.R.S. § 32-1154(A)(7), (A)(11), and/or (A)(18) as charged by the ROC in its August 27, 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 Mr. Hazlett met his 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 AWI failed to pay, when due, the sum of $3,626.70 to Mr. Hazlett. Accordingly, under all of the facts and circumstances presented herein, AWI’s conduct is found to constitute a violation of A.R.S. § 32-1154(A)(11). 5. Under A.R.S. § 32-1154(A)(18), a contractor is subject to discipline for “contracting or offering to contract or submitting a bid while the license is under suspension or while the license is on inactive status.” The Administrative Law Judge concludes, based upon a review of the ROC’s licensing history, that AWI’s license has been suspended since May 30, 2008. Mr. Hazlett was working on projects for AWI from October 2008 through May 2009, during which time AWI’s license was suspended. Therefore, the Administrative Law Judge concludes that AWI was contracting while its license was under suspension, in violation of A.R.S. § 32-1154(A)(18). 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 AWI committed wrongful acts that substantially injured Mr. Hazlett by failing to pay for all of the work performed by Mr. Hazlett. Therefore, AWI 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 AWI’s license. 8. Upon consideration of all of the facts and circumstances presented by this case, including AWI’s failure to appear for hearing and its suspended license status, the Administrative Law Judge concludes that AWI’s Class C-30 license should be revoked. RECOMMENDED ORDER Based on the foregoing, the Administrative Law Judge makes the following Recommended Order: On the effective date of the Order entered in this matter, AWI’s Class C-30 license (No. 240066) shall be revoked. 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, January 13, 2010.

/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 AWI’s contracting license was suspended on May 30, 2008, for lack of a qualifying party, suspended on December 23, 2008, for lack of bond, and suspended on December 1, 2009, for nonrenewal. Such suspended license status does not preclude this tribunal from conducting these administrative proceedings. A.R.S. § 32-1154(C).

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