ALJDEC decisions subject to certification as final

2009A-1707668-ROC-com · Registrar of Contractors · 2010-09-22

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: September 21, 2010

APPEARANCES: Complainant appeared on his own behalf; no one appeared on behalf of Respondent.

WITNESSES: Neil Mason, Complainant

ADMINISTRATIVE LAW JUDGE: Eric A. Bryant _____________________________________________________________________

Complainant requested a hearing to show that Respondent is not in compliance with a Decision and Order issued by the Registrar of Contractors. That Decision and Order required Respondent to pay restitution to Complainant. As noted above, Respondent did not appear at the hearing; therefore, Complainant’s evidence is uncontested. Procedural Background On May 21, 2009, the Registrar of Contractors (“ROC”) issued a Decision and Order adopting an Administrative Law Judge Decision that gave Respondent 40 days to comply by paying Complainant $3,255.00 or have its license suspended. On July 28, 2009, the ROC denied Respondent’s request for rehearing. On June 24, 2010, the ROC set the matter for compliance hearing. Introduction The Notice for the compliance hearing presents the issue of whether or not Respondent has complied with the ROC’s Decision and Order. This tribunal entered the complaint file received from the Registrar of Contractors into the record, which includes documentation relating to the underlying complaint and the compliance hearing request filed by Complainant. Complainant presented brief testimony at the compliance hearing. Based upon the entire record, the Administrative Law Judge makes the following Findings of Fact, Conclusions of Law, and Decision finding Respondent to be out of compliance with the Decision and Order and recommending revocation of Respondent’s license unless Respondent pays Complainant $2,605.00. FINDINGS OF FACT 1. Respondent is the holder of a class K-7 specialty dual contracting license (No. 237409) issued by the Registrar of Contractors (“ROC”). The license authorizes Respondent to perform carpentry work on both commercial and residential projects. Daniel Whitworth is Respondent’s Qualifying Party. The license has been suspended for non-renewal since October 2009. 2. On May 21, 2009, the ROC issued an Order concerning a complaint filed by Complainant against Respondent. The complaint was based on a monetary judgment issued by an Arizona Justice Court against Respondent for wages earned by Complainant as an employee of Respondent. The ROC Order adopted the Administrative Law Judge Decision that recommended that Respondent pay Complainant $3,255.00 or have its license suspended. Respondent was given 40 days to make the payment. 3. Complainant agreed that Respondent could make payments on the outstanding balance. Respondent made a few payments, bringing the balance down to $2,605.00. Respondent then stopped making payments without any explanation. 4. The evidence of record shows that Respondent still owes Complainant $2,605.00 of the amount ordered to be paid. 5. Complainant’s evidence is uncontested.

CONCLUSIONS OF LAW 1. The burden of proof at an administrative hearing is generally upon the party asserting a claim, right, or entitlement.[1] Further, the standard of proof at hearing is by preponderance of the evidence.[2] Since Complainant sought the compliance hearing, Complainant bears the burden of showing by a preponderance of evidence that Respondent failed to comply with the ROC Decision and Order.[3] Complainant has met that burden. 2. As the evidence shows, Respondent did not comply with the prior Order, even though Respondent was allowed to make payments. 3. Respondent’s license is currently suspended. The administrative suspension of Respondent’s license does not preclude discipline. Pursuant to A.R.S. § 32-1154(C), the suspension of a license does not deprive the ROC or this tribunal of jurisdiction and does not render the Registrar powerless to discipline the license further. 4. Respondent should have one last chance to pay Complainant the amount now due ($2,605.00). If Respondent does not pay the full amount in one lump sum, its license should be revoked. RECOMMENDED ORDER IT IS RECOMMENDED that Class K-7 license 237409, held by Respondent Kachina Door and Trim, LLC, be revoked beginning the effective date of the Registrar’s Order unless the Registrar receives written proof of a single lump sum payment to Complainant of $2,605.00, 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, Respondent shall be considered to be in compliance with the Order in case 09-0170, and compliance case 2009-170668 (formerly 09-0170) 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, September 22, 2010.

/s/ Eric A. Bryant Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors

----------------------- [1] Arizona Administrative Code (A.A.C.) R2-19-119(B). [2] Smith v. Arizona Dept. of Transportation, 146 Ariz. 430, 706 P.2d 756 (App. 1985). [3] Culpepper v. State, 187 Ariz. 431, 437, 930 P.2d 508, 514 (Ct. App. 1996).

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