ALJDEC decisions subject to certification as final

09F-6518-ROC · Registrar of Contractors · 2010-01-22

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: January 22, 2010 APPEARANCES: Speedie and Associates, Inc. was represented by its Sr. Vice President, Brett Creasor. Troon Construction, L.L.C. did not appear. 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. Troon Construction, L.L.C. (“Respondent”) is the holder of License No. 192640, a Class B- contracting license issued by the Registrar of Contractors (“Registrar”). 2. On October 2, 2007, Speedie and Associates, Inc. (“Complainant”) entered into a written contract with Respondent for Complainant to provide engineering services for a condominium project located at 5454 S. Beck Ave., Tempe, Arizona. Respondent was the general contractor for the project. 3. The parties’ contract provided for a contract price of $1,739.00. The contract further provided that Respondent would pay interest on any outstanding balance due to Complainant. 4. From October 3, 2007 to October 19, 2007, Complainant performed fieldwork and lab work for the subject project. Complainant provided Respondent with data developed during Complainant’s scope of work. 5. On October 31, 2007, Complainant sent an invoice to Respondent seeking payment of the contract price. Respondent failed to pay the invoice. 6. On June 29, 2009, Complainant filed a written Complaint with the Registrar alleging nonpayment by Respondent of the contract price and the accrued interest on the outstanding balance owed, which was $521.70 as of that date. 7. The Registrar designated Complainant’s Complaint as Case No. 09-6518. 8. The Registrar issued a Citation and Complaint in Case No. 09-6518 alleging violations by Respondent of A.R.S. § 32-1154(A) (7) and (11). 9. The Registrar forwarded Case No. 09-6518 to the Office of Administrative Hearings, an independent agency, for an evidentiary hearing. 10. The Registrar issued a Notice of Hearing in Case No. 09-6518, which advised the parties of the time, date, and location of the formal hearing. The Registrar sent the Notice of Hearing to the parties at their addresses of record with the Registrar. 11. 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. 12. At the hearing, Complainant’s Sr. Vice President, Brett Creasor, credibly testified that Respondent presently owes Complainant the outstanding balance of $2,443.33 as of the date of the hearing, which includes the original contract price plus accrued interest. 13. Respondent’s failure to pay Complainant the outstanding balance of $2,443.33 is a wrongful act resulting in substantial injury to Complainant. CONCLUSIONS OF LAW 1. The Registrar has jurisdiction over Respondent and the subject matter in this case. 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 charged in the Citation and Complaint issued by the Registrar. RECOMMENDED ORDER Respondent’s License No. 192640 shall be suspended on the effective date of the Order entered in Case No. 09-6518 until Respondent submits written proof to the Registrar, and the Registrar approves such proof, that Respondent has paid Complainant the original contract price of $1,739.00 plus accrued interest as of the date of payment in full to Complainant. If Respondent provides the Registrar with written proof that it has fully paid Complainant the contract price, including accrued interest as of the date of payment, on or before the effective date of the Order entered in Case No. 09-6518, and the Registrar approves such proof of payment, then the above-provided license suspension shall not take place. In addition to the foregoing license suspension, if any, Respondent’s License No. 192640 shall be placed on active suspension for a period of five days, followed immediately by a period of 90 days probation. This additional disciplinary penalty shall commence of the effective date of the Order entered in Case No. 09-6518 or the date on which the Registrar approves Respondent’s proof of payment of the contract price plus accrued interest as of the date of full payment, whichever is later. 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, January 28, 2010.

/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