ALJDEC decisions subject to certification as final

09F-L0026-ROC · Registrar of Contractors · 2009-06-16

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: June 2, 2009. APPEARANCES: T N T Roofing, L.L.C. was represented by its authorized representative, David Turner. Kuerner Homes, 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. Kuerner Homes, L.L.C. (“Respondent”) is the holder of License No. 196199, a Class B- contracting license issued by the Registrar of Contractors (“Registrar”). 2. T N T Roofing, L.L.C. (“Complainant”) is the holder of License No. 083091 issued by the Registrar. 3. Complainant filed a written Complaint with the Registrar alleging nonpayment by Respondent for work Complainant had performed on its behalf. The Registrar designated the Complaint as Case No. L09-0026. 4. The Registrar issued a Citation and Complaint in Case No. L09-0026 alleging violations by Respondent of A.R.S. § 32-1154(A) (7) and (11). 5. The Registrar forwarded Case No. L09-0026 to the Office of Administrative Hearings, an independent agency, for an evidentiary hearing. 6. On April 3, 2009, the Registrar issued a Notice of Hearing in Case No. L09-0026 advising the parties of the time, date and location of the formal hearing. The Notice of Hearing was sent to the parties at their addresses of record with the Registrar. The hearing was scheduled to convene on June 2, 2009 at 1:15 p.m. 7. On June 1, 2009, Respondent electronically filed a motion to continue the scheduled hearing. Respondent claimed that its legal counsel could not appear at the scheduled hearing.[1] Respondent’s motion was denied. The parties were notified telephonically by Office of Administrative Hearings staff that the motion had been denied. 8. The commencement of the scheduled hearing was delayed 15 minutes to allow for the late arrival of an authorized representative or attorney for Respondent. After the delay, the Administrative Law Judge conducted the hearing in Respondent’s absence. 9. The parties have had a business relationship spanning several years. 10. On May 21, 2008, Complainant billed Respondent the sum of $3,900.00 for work Complainant performed on a project located at 3452 Sundial, Bullhead City, Arizona. The invoice contained the following language: “All accounts due and payable by the 10th of the month…2% LATE CHARGE will be added each month for amounts due past 30 days.” There is credible evidence that Respondent agreed to such terms. 11. On June 2, 2008, Respondent requested that Complainant return to the jobsite to repair roof tiles damaged by Respondent’s painter and Complainant did so. 12. On June 6, 2008, Complainant returned to the jobsite to repair additional roof damage caused by the painting subcontractor. 13. On June 22, 2006, Complainant sent Respondent an invoice in the total amount of $3,978.00, which included $78.00 for late charges on the unpaid balance for the project. 14. Complainant sent Respondent an additional invoice totaling $1,260.00 for the work performed on June 2 and 6, 2008 at the project. 15. Complainant sent Respondent a fourth invoice totaling $5,342.76, which included the original invoice, the additional invoice and accruing interest on outstanding balances. 16. Respondent has not paid Complainant the original invoice amount, the additional invoice or the accruing interest on the outstanding balances. 17. Respondent’s failure to pay Complainant constitutes a wrongful act that substantially injured Complainant. 18. Pursuant to the standing motion by the Registrar, the Administrative Law Judge reviewed the Registrar’s electronic records for Respondent. Those records reveal that there are 15 open Complaints and 10 resolved/settled/withdrawn Complaints against Respondent’s Class B- contracting license. 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) (11), as cited in the Citation and Complaint in Case No. L09-0026 issued by the Registrar. Respondent owes Complainant the sum of $5,342.76, with accruing interest until paid in full. 4. Respondent violated the provisions of A.R.S. § 32-1154(A) (7), as cited in the Citation and Complaint in Case No. L09-0026 issued by the Registrar. The above Findings of Fact support this conclusion. RECOMMENDED ORDER Respondent’s License No. 196199 shall be revoked on the effective date of the Order entered in Case No. L09-0026. If Respondent provides written proof of payment to Complainant in the sum of $5,342.76, plus accrued interest to the date of payment, on or before the effective date of the Order entered in Case No. L09-0026, and the Registrar approves such proof, then the above-provided license revocation shall not take place, and the Citation and Complaint in Case No. L09-0026 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 day, June 16, 2009

______________________________________ Brian Brendan Tully 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 June 5, 2009, the Office of Administrative Hearings received a belated continuance request from L. James Martin, Esq. The request was originally filed on June 1, 2009 with the Registrar. Mr. Martin explained that he had been contacted by Respondent on June 1, 2009 for representation in this matter. Mr. Martin was unprepared in the case.

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