ALJDEC decisions subject to certification as final

10F-0262-ROC · Registrar of Contractors · 2010-02-19

STATE OF ARIZONA OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: February 19, 2010

APPEARANCES: Complainant was represented by Member John Maloney; no one appeared on behalf of Respondent.

ADMINISTRATIVE LAW JUDGE: Eric A. Bryant _____________________________________________________________________

Complainant brings this action to force Respondent to pay a remaining balance for subcontractor construction services provided to Respondent. As noted above, Respondent did not appear at the hearing; therefore, Complainants’ evidence is uncontested. This tribunal entered the complaint file received from the Registrar of Contractors into the record, along with marked Exhibit A. Based upon the entire record, the Administrative Law Judge makes the following Findings of Fact, Conclusions of Law, and Decision finding violation of the law. FINDINGS OF FACT 1. Respondent is the holder of a class C-30 specialty (finish carpentry) residential contractor license (No. 139722) issued by the Registrar of Contractors (“ROC”). That license authorized Respondent to perform finish carpentry for residential projects.[1] John DeGraaf is the company President and Qualifying Party. 2. Complainant is a contractor restricted to concrete coatings. The evidence, including testimony, documentation, and Respondent’s admission in its answer to the Citation and Complaint, show that Respondent hired Complainant as a subcontractor to do garage floor coatings. This was outside the scope of Respondent’s license and the ROC sent warning letters to both Complainant and Respondent. Complainant testified that Respondent presented himself to Complainant as a general contractor and Complainant trusted that presentation. Complainant admitted that he should have checked Respondent’s license scope, but did not do so. 3. Complainant presented documentation showing that Respondent has not paid two of the invoices for work that Complainant preformed as a subcontractor of Respondent. This amounts to $2,301.95. 4. Respondent did not appear at the hearing to dispute Complainant’s evidence. CONCLUSIONS OF LAW 1. The burden of proof at an administrative hearing is generally upon a complainant.[2] Further, the standard of proof at hearing is by preponderance of the evidence.[3] Therefore, Complainant bears the burden of showing, by a preponderance of the evidence, that Respondent has violated the statutes cited in the Citation and Complaint.[4] Complainant has met that burden. 2. The evidence is sufficient to show that Respondent has violated those statutes cited in the Citation and Complaint. 3. Respondent has failed to pay Complainant $2,301.95 that is due and owing in connection with Respondent’s work as a contractor. Respondent also contracted outside the scope of its license. 4. A review of current ROC records shows that Respondent’s license is current and active. Respondent’s failure to appear and give an account of its actions is considered a serious breach of Respondent’s duties as a licensed contractor. 5. Provisional revocation is appropriate in this matter. Respondent held himself out as a general contractor and contracted outside the scope of his license. If Respondent does not pay what is owed to Complainant, its license should be revoked. RECOMMENDED ORDER IT IS RECOMMENDED that Class C-30 license 231732, held by Respondent Great Garages, Inc., be revoked beginning the effective date of the Registrar’s Order unless the Registrar receives written proof of payment to Complainant of $2,301.00, and the Registrar of Contractors accepts such written proof. IT IS FURTHER RECOMMENDED that if Respondent provides such written proof on or before the effective date of the Registrar’s Order, the license revocation shall not take place and case 10-0262 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 19th day of February 2010.

Office of Administrative Hearings

/s/ Eric A. Bryant Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors ----------------------- [1] See, Arizona Revised Statutes (A.R.S.) § 32-1102 and Arizona Administrative Code (A.A.C.) R4-9-103 for a description of residential license classifications. [2] Utah Construction Company v. Berg et al, 68 Ariz. 285, 205 P.2d 367 (1949). [3] Smith v. Arizona Dept. of Transportation, 146 Ariz. 430, 706 P.2d 756 (App. 1985). [4] Culpepper v. State, 187 Ariz. 431, 437, 930 P.2d 508, 514 (Ct. App. 1996).

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