ALJDEC decisions subject to certification as final

2009A-163875994-ROC · Registrar of Contractors · 2012-03-30

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: March 30, 2012

APPEARANCES: Complainant was represented by authorized employee representative Judy Foster, Office Manager, accompanied by Accounts Receivable Manager Karen Speros; no one appeared on behalf of MRM Architectural Concrete LLC.

ADMINISTRATIVE LAW JUDGE: Eric A. Bryant _____________________________________________________________________

This formerly closed action was reopened and set for compliance hearing upon Complainant’s request to hear an allegation that MRM Architectural Concrete LLC (MRM) has failed to pay for rental equipment used during the course of MRM’s contracting business.[1] MRM holds two licenses, both of which have been cited. As noted above, MRM did not appear at the hearing; therefore, Complainant’s evidence is uncontested. This tribunal entered the complaint file received from the Registrar of Contractors (“Registrar”) into the record, along with marked Exhibits A through D, and took brief testimony from Judy Foster. Based upon the entire record, the Administrative Law Judge makes the following Findings of Fact, Conclusions of Law, and Recommended Order, finding violation of the no-pay provision and recommending that both licenses be revoked. FINDINGS OF FACT 1. MRM is the holder of License No. C-9.210635-R and License No. L- 9.250557-C issued by the Registrar. Michael Robert Mejia is the Qualifying Party named on both licenses. Administrative notice is taken of MRM’s prior license record as reflected on the ROC’s public website on March 30, 2012. That prior record shows that License No. C-9.210635-R expired in September 2010, and License No. L-9.250557-C expired in December 2011. 2. Complainant rents construction equipment to contractors. Pursuant to rental agreements, MRM rented equipment from Complainant through 2009 for various residential and commercial projects.[2] Complainant’s witness, Judy Foster, briefly testified about the amounts past due from MRM, referring to individual invoices attached to the complaint filed with the ROC and listed in Exhibit D. The evidence presented shows that MRM owes Complainant more than $750.00. 3. This case was originally set for hearing on April 23, 2010. The parties appeared at that time and Complainant decided to withdraw the complaint, with leave to re-open, so that the parties could work out a payment plan. The Registrar closed the case.[3] A plan never came to fruition and Complainant requested that the matter be reopened. 4. MRM 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.[4] Further, the standard of proof at hearing is by preponderance of the evidence.[5] Therefore, Complainant bears the burden of showing, by a preponderance of the evidence, that MRM has violated the statutes cited in the Citation and Complaint.[6] Complainant has met that burden. 2. The Citation and Complaint cites the “no pay” provision found in Arizona Revised Statutes (A.R.S.) § 32-1154(A)(11) that prohibits the failure of a licensee to pay monies in excess of $750 “when due for materials or services” when the licensee has the capacity to pay or when the licensee has been paid for the project. The evidence is sufficient to show that MRM has violated that provision. 3. MRM has failed to pay Complainant more than $750.00 that is due for materials in connection with MRM’s business as a contractor. 4. MRM’s licenses are expired. Pursuant to A.R.S. § 32-1154(C), the expiration of a license does not deprive the Registrar or this tribunal of jurisdiction and does not render the Registrar powerless to discipline the license. 5. MRM’s licenses should be revoked. RECOMMENDED ORDER IT IS RECOMMENDED that License No. C-9.210635-R held by M R M Architectural Concrete, LLC be revoked. IT IS FURTHER RECOMMENDED that License No. L-9.250557-C held by M R M Architectural Concrete, LLC be revoked.

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, March 30, 2012.

/s/ Eric A. Bryant Administrative Law Judge Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors ----------------------- [1] Order Reopening Complaint and Setting Compliance Hearing, issued February 10, 2012. [2] Exhibit D. [3] Order of Closing, issued June 2, 2010. [4] Utah Construction Company v. Berg et al, 68 Ariz. 285, 205 P.2d 367 (1949). [5] Smith v. Arizona Dept. of Transportation, 146 Ariz. 430, 706 P.2d 756 (App. 1985). [6] Culpepper v. State, 187 Ariz. 431, 437, 930 P.2d 508, 514 (Ct. App. 1996).

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