ALJDEC decisions subject to certification as final

2009A-56216134-ROC · Registrar of Contractors · 2010-06-11

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: June 4, 2010 APPEARANCES: Consolidated Electrical Distributors was represented by its authorized representative, Jeff Huppler. Lundell Electric Services, Inc. was represented by its authorized representative, Don Lundell. 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. Lundell Electric Services, Inc. (“Respondent”) is the holder of License No. 216065, a Class K-11 contracting license issued by the Registrar of Contractors (“Registrar”). 2. Consolidated Electrical Distributors, doing business as Arizona Electric Supply (“Complainant”), is an electrical supplier located at 2733 N. Power Road, Suite 102-401, Mesa, Arizona. 3. On October 17, 2006, Respondent submitted a Credit Application and Agreement for Credit Sales (“Credit”) to Complainant. Respondent agreed to Complainant’s credit terms in return for a line of credit to purchase electrical supplies from Complainant. Respondent’s member and qualifying party, Dan Lundell, personally guaranteed Respondent’s line of credit. 4. On October 24, 2006, Complainant approved Respondent’s Credit. 5. The parties’ credit agreement does not contain a “pay when paid” provision. 6. Respondent purchased electrical supplies using its line of credit with Complainant. 7. Respondent became delinquent in paying its outstanding balance owed to Complainant. 8. By letter dated December 11, 2008, Complainant made a final demand for payment in full in the amount of $3,867.18 from Respondent due to Respondent’s delinquency in repayment since June 2008. 9. Respondent made its last payment to Complainant on January 16, 2009. 10. On April 24, 2009, Complainant filed a written Complaint with the Registrar alleging nonpayment by Respondent in the amount of $3,168.55. The Registrar originally designated the Complaint as Case No. 09-5621, but later re-designated it as Case No. 2009-56216134 11. The Registrar issued a Citation and Complaint charging Respondent with violating the provisions of A.R.S. § 32-1154(A) (11). 12. The Registrar forwarded Case No. 2009-56216134 to the Office of Administrative Hearings, an independent agency, for an evidentiary hearing. 13. At hearing, Complainant presented credible evidence to support the outstanding balance owed by Respondent as stated in its Complaint in the amount of $3,168.55, plus additional accrued interest. 14. Respondent contends that it is not required to pay Complainant until it is paid for the projects for which it used the materials purchased from Complainant on credit. Since Respondent has not been paid for several projects, Respondent believes that it is not responsible for repaying Complainant for supplies used on the unpaid projects. Respondent’s contention is not supported by the evidence of record or any statutory and/or regulatory authority. 15. Respondent has been contracting since it incurred the debt owed to Complainant. Respondent has received compensation for its contracting. 16. Respondent presented evidence that it could make a payment of $1,000.00 to Complainant. CONCLUSIONS OF LAW 1. The Registrar has jurisdiction over Respondent and the subject matter in this case. 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. Complainant sustained its burden of proving that Respondent violated the provisions of A.R.S. § 32-1154(A) (11), as charged in the Citation and Complaint issued by the Registrar. The evidence of record supports this conclusion. RECOMMENDED ORDER Respondent’s License No. 216065 shall be revoked on the effective date of the Order entered in Case No. 2009-56216134. 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, June 14, 2010.

/s/ Brian Brendan Tully Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors -----------------------

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