ALJDEC decisions subject to certification as final

2009A-6127066-ROC · Registrar of Contractors · 2011-06-15

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: June 6, 2011 APPEARANCES: Yashica Turner appeared on behalf of Complainant Border Construction Specialties, L.L.C. Respondent Arizona Structural Concrete Construction Corporation failed to appear. ADMINISTRATIVE LAW JUDGE: Sondra J. Vanella _____________________________________________________________________ The question presented by this matter is whether Respondent Arizona Structural Concrete Construction Corporation (“Arizona”) is subject to discipline for acts or omissions in violation of A.R.S. § 32-1154(A). Based on the evidence of record, the Administrative Law Judge makes the following Findings of Fact, Conclusions of Law, and Recommended Order: FINDINGS OF FACT 1. Arizona is the holder of a Class K-9 license (No. 199736) issued by the Registrar of Contractors (“ROC”).[1] 2. On December 9, 2008, Complainant Border Construction Specialties, L.L.C. (“Border”) filed a complaint against Arizona with the ROC alleging non-payment in the amount of $2,343.51, for masonry materials supplied by Border to Arizona. 3. On April 28, 2009, the ROC issued a Citation and Complaint charging Arizona with violating the provisions of A.R.S. §§ 32-1154(A)(7) and (A)(11). 4. On or about July 17, 2009, the ROC issued a Notice of Hearing advising the parties that the scheduled hearing in this matter would convene on August 20, 2009, at 11:00 a.m., at the Office of Administrative Hearings located in Tucson, Arizona, before Administrative Law Judge Douglas. 5. On August 20, 2009, at the time set for hearing, Border’s representative, Nicole Burleson, appeared and advised the Tribunal that the parties had reached a settlement agreement. The essential terms of the Settlement Agreement were stated for the record. 6. Pursuant to the terms of the Settlement Agreement, Arizona agreed to pay Border $1,000.00 within a week and to make reasonable monthly payments thereafter until the balance of the amount owed was paid in full. Border agreed to withdraw the Complaint at issue and agreed to the closing of the matter. 7. On August 20, 2009, Administrative Law Judge Douglas issued an Order Vacating Hearing Re: Settlement. 8. On September 21, 2009, the ROC issued an Order of Closing, acknowledging Administrative Law Judge Douglas’ Order Vacating Hearing. 9. On or about September 22, 2009, Border submitted written correspondence to the ROC stating that Arizona “has failed to follow through with the settlement.” Arizona did not file a response to Border’s September 22, 2009 correspondence with the ROC. 10. On February 24, 2011, the ROC issued an Order Reopening Complaint and Setting Compliance Hearing. 11. On March 15, 2011, the ROC issued a Notice of Compliance Hearing advising the parties that the scheduled hearing in this matter would convene on June 6, 2011, at 8:00 a.m. at the Office of Administrative Hearings in Phoenix, Arizona. The Notice of Compliance Hearing advised the parties that the purpose of the hearing was to determine the following: whether or not [Arizona] has violated the provisions of A.R.S. § 32- 1154(A) as were alleged in the Registrar’s April 28, 2009 Citation and Complaint. If the assigned administrative law judge concludes that [Arizona] violated A.R.S. § 32-1154 (A) as charged and recommends that discipline is to be imposed upon [Arizona’s] License, and the Registrar adopts such conclusion and recommendation, then discipline may be imposed immediately, based upon a finding that in addition to any violation of contracting laws that have been committed by [Arizona], [Arizona] further breached the parties’ Settlement Agreement.

12. On the date and at the time scheduled for the compliance hearing, Yashica Turner appeared on behalf of Border. No one appeared on behalf of Arizona. The Administrative Law Judge delayed the commencement of the hearing for approximately fifteen minutes to allow for the appearance of Arizona, or the receipt of any information that would constitute good cause for its absence or delay. No such information was received. Therefore, the hearing proceeded in Arizona’s absence. 13. Ms. Turner testified at hearing consistently with the above delineated Findings of Fact. Ms. Turner further testified that Arizona used a line of credit with Border to purchase masonry materials from Border, including mortar, brick, block, clay, concrete, scrapers, wire brushes, and rebar from June 17, 2008 through September 4, 2008, and failed to pay Border for those materials. Ms. Turner submitted into evidence copies of the invoices Border sent to Arizona dated June 17, 2008, through September 4, 2008, for the various materials supplied to Arizona. See Exhibit 1. 14. The Administrative Law Judge finds, based on the weight of the credible evidence of record, that the sum of $2,343.51 is the proper balance due and owing to Border from Arizona for the materials supplied by Border to Arizona from June 17, 2008, through September 4, 2008. Notwithstanding repeated attempts and billings over a prolonged period of time, said balance remains unpaid. CONCLUSIONS OF LAW 1. In this proceeding, Arizona is subject to discipline for violations of A.R.S. § 32-1154(A)(7) and (A)(11) as charged by the ROC in its April 28, 2009 Citation and Complaint. See Arizona Administrative Code 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. The Administrative Law Judge concludes that Border met its burden of proof as to both of the ROC’s charges. 4. Under A.R.S. § 32-1154(A)(7), a contractor is subject to discipline for “the doing of a wrongful or fraudulent act by the licensee as a contractor resulting in another person being substantially injured.”[2] The instant record demonstrates that Arizona committed a wrongful act when it failed to pay Border for the materials Border supplied to Arizona. Therefore, the Administrative Law Judge concludes that Arizona is in violation of A.R.S. § 32- 1154(A)(7). 5. Under A.R.S. § 32-1154(A)(11), a contractor is subject to discipline for the “failure . . . to pay monies in excess of seven hundred fifty dollars when due for materials or services rendered . . .” The instant record demonstrates that Arizona failed to pay, when due, the sum of $2,343.51 to Border. Accordingly, under all of the facts and circumstances presented herein, Arizona’s conduct is found to constitute a violation of A.R.S. § 32-1154(A)(11). 6. Based upon the above violations of the provisions of A.R.S. § 32- 1154(A), grounds exist to impose discipline against Arizona’s license. 7. Upon consideration of all of the facts and circumstances presented by this case, including Arizona’s failure to appear for the compliance hearing, its breach of the Settlement Agreement, and its revoked license status, the Administrative Law Judge concludes that Arizona’s Class K-9 license should be revoked. RECOMMENDED ORDER Based on the foregoing, the Administrative Law Judge makes the following Recommended Order: It is ordered that Arizona’s Class K-9 license be revoked on the effective date of the Order entered in this matter. 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 in this matter will be forty (40) days from the date of that certification.

Done this day, June 15, 2011.

/s/ Sondra J. Vanella Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors ----------------------- [1] A review of the ROC’s official records revealed that Arizona’s contracting license was suspended on December 9, 2009, in Case Number 09- 0831, cancelled on January 12, 2010, and revoked on March 9, 2010, in Case Number T09-0814. Such cancelled and revoked license status does not preclude this tribunal from conducting these administrative proceedings. A.R.S. § 32-1154(C).

[2] As of September 30, 2009, A.R.S. § 32-1154(A)(7) was amended to remove the word “wrongful” from the statute. However, because the Citation and Complaint issued herein pre-dates the amendment, and because the ROC advised in its Notice of Compliance Hearing that the hearing was being held in order to determine whether or not Arizona has violated the provisions of A.R.S. § 32-1154(A) “as were alleged in the Registrar’s April 28, 2009 Citation and Complaint,” the Administrative Law Judge applies the statutory language that was in effect at the time the Citation and Complaint was issued.

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