ALJDEC decisions subject to certification as final

09F-L0126-ROC · Registrar of Contractors · 2009-09-24

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: September 16, 2009. APPEARANCES: Suncor Concrete was represented by its credit manager, Johwana Rojas. Michael Norman Cashman 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. Michael Norman Cashman, doing business as Sierra Development (“Respondent”), is the holder of License No. 197795 issued by the Registrar of Contractors (“Registrar”). 2. Suncon Concrete (“Complainant”) was a material supplier to Respondent. Respondent ordered concrete and aggregate from Complainant from June 30, 2007 to August 15, 2007. 3. On October 22, 2008, Complainant filed a written Complaint with the Registrar alleging nonpayment by Respondent for materials supplied by Complainant. Respondent’s outstanding balance was $8,490.83. 4. The Registrar designated Complainant’s Complaint as Case No. L09-0126. 5. The Registrar issued a Citation and Complaint in Case No. L09-0126 alleging violations by Respondent of A.R.S. § 32-1154(A) (7) and (11). 6. The Registrar forwarded Case No. L09-0126 to the Office of Administrative Hearings, an independent agency, for an evidentiary hearing. 7. The Registrar issued a Notice of Hearing in Case No. L09-0126 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. 8. The commencement of the scheduled hearing was delayed 15 minutes to allow for the late arrival of Respondent or an attorney authorized to represent him. After the delay, the Administrative Law Judge conducted the hearing in Respondent’s absence. 9. Complainant obtained funds from Respondent’s bonding company, which it applied to Respondent’s outstanding balance. The amount remaining due by Respondent is $2,663.51. 10. Respondent failure to pay Complainant in full for the services he obtained from Complainant is a wrongful act that substantially injured Complainant. 11. A review of the Registrar’s electronic records reveals that Respondent’s contracting license was suspended by operation of law for lack of bond on July 8, 2009. CONCLUSIONS OF LAW 1. The Registrar has jurisdiction over Respondent and the subject matter in this case. Pursuant to A.R.S. § 32-1154(C), the suspension of Respondent’s contracting license for lack of bond does not deprive the Registrar of authority to impose disciplinary action on Respondent’s license for proven violations in this matter. 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 cited in the Citation and Complaint issued by the Registrar. The above Findings of Fact support this conclusion. RECOMMENDED ORDER Respondent’s License No. 197795 shall be revoked on the effective date of the Order entered in Case No. L09-0126. If Respondent pays the sum of $2,663.51 to Complainant on or before the effective date of the Order entered in Case No. L09-0126, then the above-provided license revocation shall not take place, but instead Respondent’s license shall be placed on disciplinary probation for a period of 120 days. This alternative penalty shall commence, if at all, on the effective date of the Order entered in Case No. L09-0126. 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, September 24, 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 ___________________________

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