ALJDEC decisions subject to certification as final

2009A-23935285-ROC · Registrar of Contractors · 2012-05-30

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: May 21, 2012, at 8:00 a.m. APPEARANCES: Complainant appeared through its authorized representative, Gary Faucett. Respondent appeared through its attorney, John D. Parker, II Esq., Parker Law Firm PLC. ADMINISTRATIVE LAW JUDGE: M. Douglas

This matter came on for a Compliance Hearing to determine whether the Respondent has fully complied with the terms of the Registrar of Contractor’s (Registrar’s) August 10, 2009 Default Decision and Order. Evidence and testimony were presented, and the following Findings of Fact, Conclusions of Law and Recommended Order on Compliance Hearing are made: FINDINGS OF FACT 1. The August 10, 2010 Default Decision and Order of the Registrar provides, in pertinent part, as follows: IT IS ORDERED suspending Respondent’s Class L-09 license on the effective date of this Order (40 days after the mailing date, shown below), until the Registrar receives proof that Respondent has paid Complainant the balance of the money Complainant claims is due and owing, $14,650.59, as stated in the Complaint. If Respondent pays the claimed amount of money on or before the effective date of this Order then Respondent’s license shall not be suspended, and this Citation and Complaint shall be closed. Pursuant to A.R.S. §32-1154(E), IT IS FURTHER ORDERED that Respondent pay $1,000.00 as a civil penalty to the Registrar. If Respondent fails to pay this civil penalty 30 days after this Order’s effective date, the Registrar shall automatically revoke Respondent’s license on that date.[1]

2. On March 9, 2012, the Registrar issued its Order Rejecting Respondent’s Second Request for Rehearing and Setting Compliance Hearing, which provides, in pertinent part, as follows: At the Compliance Hearing, the parties may offer evidence and testimony as to whether or not Respondent has complied with the terms set forth in the Registrar’s August 10, 2009 Default Decision and Order. If it is determined that Respondent failed to comply with the terms of the August 10, 2009 Default Decision and Order, then Respondent’s License No. 172007 shall be subject to the immediate imposition of discipline.[2]

3. The sum $14,650.59 set forth in the Complaint at issue was based upon the amount claimed as due and owing by Hanson Aggregates of Arizona Inc. 4. At the compliance hearing, there was no dispute that Respondent had paid the sum of $14,650.59 to Hanson Aggregates and that Complainant has been provided with a final unconditional release from Hanson Aggregates of Arizona Inc. 5. Complainant asserted that the only matter remaining at issue was Complainant’s claim for reimbursement for approximately $5,000.00 in attorney’s fees incurred by Complainant allegedly as a result of Respondent’s failure to pay Hanson Aggregate of Arizona Inc in a prompt manner. 6. Complainant’s claim for attorney’s fees is not set forth in the Complaint at issue and is not addressed in the Registrar’s August 10, 2009 Default Decision and Order. 7. Complainant’s claim for attorney’s fees allegedly incurred as a result of Respondent’s failure to pay its material suppliers in a prompt manner may be addressed in a civil court of competent jurisdiction. 8. In the March 9, 2012 Order Rejecting Respondent’s Second Request for Rehearing and Setting Compliance Hearing, the Registrar specifically noted that its records as of March 9, 2012, did not reveal that Respondent had paid the civil penalty imposed in this matter and that the civil penalty must be paid within fifteen days of the March 9, 2012 Order. 9. There was no dispute that Respondent failed to pay the $1,000.00 civil penalty set forth in the August 10, 2009 Default Decision and Order. The payment of the $1,000.00 civil penalty is a specific term of the August 10, 2009 Default Decision and Order. 10. Respondent failed to fully comply with the terms of the Registrar’s August 10, 2009 Default Decision and Order. 11. Administrative notice is taken of the Respondent’s prior License record as reflected on the Registrar of Contractors’ public website on May 30, 2012. such prior License record reflects that License No. L-9.172007-C of Concrete By Kelly Sundeaus Inc was revoked on May 13, 2012, for Respondent’s failure to pay a civil penalty. CONCLUSIONS OF LAW 1. The burden of proof at an administrative hearing falls to the party asserting a claim, right or entitlement and the standard of proof on all issues in these matters is by a preponderance of the evidence. See A.A.C. R2-19-119. 2. A preponderance of the evidence is “such proof as convinces the trier of fact that the contention is more probably true than not.” Morris K. Udall, Arizona Law of Evidence § 5 (1960). 3. Credible testimony and evidence presented during the compliance hearing supported findings that the Respondent has not fully complied with the terms of the prior Order of the Registrar. 4. A licensed contractor is not entitled to an unlimited period of time or an endless succession of opportunities to comply with specified conditions which reduce, eliminate, or terminate, disciplinary action against the Contractor’s License.

RECOMMENDed order In view of the foregoing, it is recommended that License No. L- 9.172007-C of Concrete By Kelly Sundeaus Inc be immediately revoked. In the event of certification of this 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 the certification. Done this day, June 11, 2012.

/s/ M. Douglas Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors

----------------------- [1] August 10, 2009 Default Decision and Order at 2. II 4-12 [2] Order Rejecting Respondent’s Second Request for Rehearing and Setting Compliance Hearing at 2, II. 1-5.

-----------------------

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