ALJDEC decisions subject to certification as final

09F-A0254-ROC · Registrar of Contractors · 2009-11-04

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: October 16, 2009. APPEARANCES: Complete Crete, L.L.C. was represented by its member, V. Keith Riggs. The Titus Group, Inc., doing business as Arizona Earthmovers, was represented by its president, John L. Moody. 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 FACTS 1. The Titus Group, Inc., doing business as Arizona Earthmovers (“Respondent”) is the holder of License No. 08f729, a Class A- contracting license issued by the Registrar of Contractors (“Registrar”). 2. Complete Crete, L.L.C. (“Complainant”) is the holder of License No. 238342, a K-09 contracting license issued by the Registrar.[1] 3. On December 23, 2008, Complainant filed a written Complaint with the Registrar alleging nonpayment by Respondent in the amount of $21,872 for work performed by Complainant for Respondent on a jobsite located at 827 W. Dunlap Avenue, Phoenix, Arizona. The Registrar designated the Complaint as Case No. A09-0254. 4. The Registrar issued a Citation and Complaint in Case No. A09-0254 alleging violations by Respondent of A.R.S. § 32-1154(A) (7) and (11). 5. The Registrar forwarded Case No. A09-0254 to the Office of Administrative Hearings, an independent agency, for formal hearing. 6. On March 15, 2008, the parties entered into a contract for the performance of concrete sidewalks, curbs and gutters by Complainant for Respondent on the subject property. The total contract price was $43,744.00 for Complainant’s scope of work. 7. Complainant completed its scope of work on April 4, 2008. Respondent contends that Complainant did great work on the project. 8. Respondent paid Complainant the sum of $21,872.00 of the total contract price. 9. It is uncontroverted that Respondent owes the claimed amount. Complainant contends that Respondent received payment for the work performed. 10. At the hearing, Respondent introduced a letter dated August 11, 2008 into evidence. In that letter, Respondent’s president, John L. Moody, advised the Registrar that requested that a Citation and Complaint be issued in Case No. Y09-0024 against Pinnacle Commercial Ventures, L.L.C., who “has not paid Arizona Earthworks for work Completed [sic] dating back to February, 2008.”[2] 11. Based upon Respondent’s August 11, 2008 letter, it appears that Respondent was having funding problems for at least the subject property but elected to contract with Complainant anyway. 12. Respondent’s failure to pay the outstanding balance of $21,872.00 to Complainant for work performed on the subject project was a wrongful act resulting in substantial injury to Complainant. 13. A review of the Registrar’s official electronic records reveals that Respondent’s contracting license is current. 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. 085729 shall be suspended on the effective date of the Order entered in Case No. A09-0254 until the Registrar receives written proof, and the Registrar accepts such proof, that Respondent has paid the sum of $21,872.00. If Respondent provides the Registrar with written proof that is has paid Complainant the sum of $21,872.00 on or before the effective date of the Order entered in Case No.A09-0254, and the Registrar approves such proof, then the above-provided license suspension shall not take place. In addition to the above-provided license suspension, if any, Respondent’s contracting license shall be placed on disciplinary probation for a period of 120 days. This alternative penalty shall commence on the date of Respondent’s compliance with the above payment requirement or the commencement dated of the Order entered in Case No. A09-0254, whichever is the 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, November 4, 2009

/s/ Brian Brendan Tully Administrative Law Judge

Electronically transmitted to:

William A. Mundell, Director Registrar of Contractors

----------------------- [1] In its Complaint, Complainant incorrectly listed its license as 188176. [2] It is unclear if Pinnacle Commercial Ventures, L.L.C. was the general contractor and/or property owner for the subject property and/or other projects with Respondent.

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