ALJDEC decisions subject to certification as final

09F-L0120-ROC · Registrar of Contractors · 2009-08-31

STATE OF ARIZONA IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: August 18, 2009 APPEARANCES: Complainant: Gerald Vicker, corporate officer, appeared, pro per. Respondent: Respondent failed to appear either by 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. The hearing in this matter convened via videoconference at the time, date and place set forth in the Notice of Hearing issued by the Registrar of Contractors (“ROC/Registrar”) on May 14, 2009. 2. Complainant Skyline Plumbing Contractors, Inc. (“Complainant”) is a corporation doing business in Arizona. Gerald Vicker (“Vicker”), corporate officer, appeared on behalf of Complainant. 3. Respondent Homes by Steve C. Anderson, Inc. (“Respondent”) is a corporation which holds Arizona Contractor’s License No. 091496, Class B- (General Residential) issued by the ROC on October 30, 1991. Steve Charles Anderson is a corporate officer and the qualifying party for the license. A review of the licensing database maintained by the Registrar indicates that this license was suspended December 8, 1998 and lifted March 25, 1999 (H98-0129), placed on probation March 1, 2004 through March 1, 2005 (A03- 0239), suspended January 11 – 15, 2002 due to a Recovery Fund payout on license 106853, and suspended October 24 through November 17, 2004 for lack of bond. 4. Complainant filed a Complaint with the ROC on October 16, 2008 (“Complaint 1”), wherein it alleged non-payment of $4,694.40 for plumbing work performed on and materials supplied to a project located at 3480 Thunderhawk Drive, Lake Havasu City (“Thunderhawk project”). 5. Complainant filed a second Complaint with the ROC on October 16, 2008 (“Complaint 2”), wherein it alleged non-payment of $18,784.66 for plumbing work performed on and materials supplied to a project located at 1841 Deacon Drive, Lake Havasu City, Arizona (“Deacon project”). 6. On April 8, 2009, the Registrar issued a Citation and Complaint in Case No. L09-0120 charging Respondent with possible violations of A.R.S. § 32-1154 (A) (7) and (11). 7. Respondent filed an Answer on April 20, 2009, wherein it asserted, inter alia, that “due to the economy” it was not currently in a position to pay Complainant. 8. At the hearing, Vicker credibly testified on behalf of Complainant and submitted Exhibits C-1 through C-5 which were marked, admitted and considered. 9. Respondent failed to appear either through authorized representative or counsel. 10. On the testimony and evidence of record, the following salient facts are important to note: a. In 2008, Complainant performed plumbing work on and provided materials to the Thunderhawk project in the amounts of $18,784.66. (Exhibits C-1 and C-2); b. On March 3, 2009, Respondent made a payment on the Thunderhawk project of $15,000.00 (Exhibit C-3); c. There remains an outstanding balance due Complainant on the Thunderhawk project of $3,784.66; d. In 2008, Complainant performed plumbing work on and materials provided to the Deacon project in the amount of $4,694.40 all of which remains unpaid (Exhibit C-4);[1] and, e. As of the date of the hearing, there remained due and owing Complainant a total balance due of $8,479.06 for plumbing work performed on and materials provided to the Thunderhawk and Deacon projects on behalf of Respondent.

APPLICABLE LAW The Citation and Complaint issued by the Registrar in Case No. L09- 0120 charged Respondent with possible violations of A.R.S. § 32-1154 (A) (7) and (11). 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.

… … 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 $8,479.06 balance due for plumbing work performed on and materials provided to Respondent on the Thunderhawk and Deacon projects. 5. The foregoing violation is deemed by this tribunal to have been a wrongful act resulting in the substantial injury to Complainant. Therefore, a violation of A.R.S. § 32-1154 (A) (70 has 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 $8,479.06 to Complainant as and for the outstanding balance due for plumbing work performed on and materials provided to Respondent on the Thunderhawk and Deacon projects. IT IS FURTHER RECOMMENDED that if Respondent remits and/or tenders the sum of $8,379.06 to Respondent on or before the effective date of the Registrar’s Order, the above license suspension shall not take place.[2] Done this day, August 31, 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] Complainant also asserted that it performed work and provided materials to a project located at 3433 Arnold Palmer Drive, Lake Havasu City in the amount of $357.80. However, such claim was not set forth in either Complaint and, therefore, is not properly before this tribunal. [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