ALJDEC decisions subject to certification as final

09F-A0228-ROC · Registrar of Contractors · 2009-10-13

STATE OF ARIZONA IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: October 13, 2009 APPEARANCES: Complainant: Kevin G. Quinn, member, appeared, pro per. Respondent: Respondent failed to appear either through authorized representative or counsel. ADMINISTRATIVE LAW JUDGE: Brian E. Smith _____________________________________________________________________ Evidence and testimony were presented and, based on the entire record in this matter, the following Findings of Fact, Conclusions of Law and Recommended Order are made:

FINDINGS OF FACT 1. This matter convened for hearing via videoconference at the time, date and place set forth in the July 31, 2009 Notice of Hearing issued by the Registrar of Contractors (“ROC/Registrar”). 2. Complainant Horizon Painting, Co. L.L.C. (“Complainant”) is a limited liability company doing business in Arizona. Kevin G. Quinn (“Quinn”), member, appeared on behalf of Complainant. 3. Respondent Shelly Construction, L.L.C. (“Respondent”) is a limited liability company which holds Arizona Contractor’s License No. 115998, Class B- (General Residential) issued by the ROC on July 22, 1996. A review of the licensing database maintained by the Registrar indicates that this license is exempt from having a designated qualifying party. 4. Complainant filed a Complaint with the Registrar on December 8, 2008, wherein it alleged non-payment of $38,890.00 for painting work performed on and materials supplied to various residences located in the Pronghorn Ranch subdivision, Prescott Valley, Arizona (“premises/project”). 5. On April 30, 2009, the Registrar issued a Citation and Complaint in Case No. A09-0228 charging Respondent with possible violations of A.R.S. § 32-1154 (A) (7) (11). 6. Respondent filed an Answer on May 14, 2009, wherein it, inter alia, acknowledged indebtedness to Complainant of an undetermined amount and advised that it had suspended operations due to the termination of bank financing. 7. At the hearing, Quinn testified on behalf of Complainant and submitted Exhibits C-1 through C-7 which were marked, admitted and considered. 8. Respondent failed to appear either by authorized representative or counsel.[1] 9. On the credible testimony and uncontroverted evidence of record, the following salient facts are important to note: a. Beginning approximately September 4, 2007, and continuing through approximately October 23, 2009, Complainant performed painting work on and supplied materials to numerous residences located in the project (Exhibits C-1 through C-7); b. As of the date of the hearing herein there remained due and owing Complainant a balance of $34,897.00 for the painting work performed on and materials supplied to the various residences on the project; and, c. Respondent’s purchase orders submitted to Complainant (Exhibit C- 7) failed to properly display the “ROC” acronym and Respondent license number. APPLICABLE LAW The Citation and Complaint issued by the Registrar in Case No. A09- 0228 charged Respondent with possible violations of A.R.S. § 32-1154 (A) (7), (11) and (13) (namely, A.R.S. § 32-1124 (B)). Those statutory sections require that the holder of a license or person listed on the license shall not commit the following:

7. The doing of a wrongful act by the licensee as a contractor resulting in another person being substantially injured.

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11. Failure by a licensee or agent or official of a licensee to pay monies in excess of seven hundred fifty dollars when due for materials or services rendered in connection with his operations as a contractor when he has the capacity to pay or, if he lacks the capacity to pay, when he has received sufficient monies as payment for the particular construction work project or operation for which the services or materials were rendered or purchased.

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13. Failure in any material respect to comply with the provisions of this chapter.

A.R.S. §32-1124 (B) is named as the statute violation charged pursuant to A.R.S. §32-1154 (A) (13). That statute provides, inter alia, that every license and/or renewal must be signed by the Registrar or the Registrar’s designated representative and the licensee. It further provides that every license number must be preceded by the acronym “ROC” and be posted in a conspicuous place on premises where any work is being performed, on all written bids submitted by the licensee and on all advertising, letterheads and other documents used by the licensee in the conduct of business.

CONCLUSIONS OF LAW 1. The Registrar has jurisdiction over this matter, pursuant to A.R.S. § 32-1101, et seq., which authorizes the Registrar to impose disciplinary sanctions against licenses for violations of A.R.S. § 32-1154 (A). 2. To warrant such sanctions by the Registrar, Complainant must demonstrate by a preponderance of the evidence that Respondent violated any one, or more, of the statutory sections cited. Proof by a “preponderance” means that “the evidence is sufficient to persuade the finder of fact that the proposition is more likely true than not.” In re Arnold and Baker Farms, 177 B.R. 648 (9th Cir. BAP (Ariz.) 1994). See also, Culpepper v. State of Arizona, 187 Ariz. 43, 930 P.2d 508 (App. 1996). It is “evidence which is of greater weight or more convincing than the evidence which is offered in opposition to it; that is, evidence which as a whole shows that the fact sought to be proved is more probable than not.” Black’s Law Dictionary 1182 (Rev. 6th ed. 1990). 3. It is determined and concluded that Complainant established by a preponderance of credible, probative and relevant evidence that Respondent violated A.R.S. § 32-1154 (A) (11) by failing to remit payment to Complainant of the $34,897.00 balance due for painting work performed on and materials provided to Respondent on the project. 4. This tribunal determines and concludes that Complainant established by a preponderance of credible, probative and relevant evidence that Respondent violated A.R.S. § 32-1124 (B) (namely, A.R.S. § 32-1124 (B)) by failing to properly display the “ROC” acronym and its license number on its purchase orders submitted to Complainant. 5. The foregoing violations are deemed by this tribunal to have been wrongful acts resulting in the substantial injury to Complainant. Therefore, violations of A.R.S. § 32-1154 (A) (7) have been proven as cited.

RECOMMENDED ORDER On the basis of the foregoing, IT IS RECOMMENDED that, commencing on the effective date of the Order entered in this matter, the B- license of Respondent be suspended until the Registrar receives written proof that Respondent has paid or tendered the sum of $34,897.00 to Complainant as and for the outstanding balance due for painting work performed on and materials supplied to Respondent on the project. IT IS FURTHER RECOMMENDED that, if Respondent remits and/or tenders the sum of $34,897.00 to Complainant on or before the effective date of the Registrar’s Order, the above license suspension shall not take place.[2] Done this day, October 13, 2009.

________________________ Brian E. Smith Administrative Law Judge

Original transmitted by mail this ____ day of ____________, 2009, to:

William A. Mundell, Director Registrar of Contractors c/o Legal Department 3838 N. Central Ave. Phoenix, AZ 85012

By ___________________________ ----------------------- [1] On August 12, 2009, Respondent filed via facsimile with the Office of Administrative Hearings a correspondence wherein it related that it had “suspended operations and terminated employment of all operational personnel Therefore, no one is available to attend the” hearing.” [2] 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.

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