ALJDEC decisions subject to certification as final

2010A-177547-ROC · Registrar of Contractors · 2011-06-10

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: June 6, 2011

APPEARANCES: Paul Thompson, corporate President, appeared on behalf of Complainant; no one appeared on behalf of Respondent.

WITNESSES: Paul Thompson

ADMINISTRATIVE LAW JUDGE: Eric A. Bryant _____________________________________________________________________

This matter was set as a compliance hearing to determine whether Respondent committed any of the violations alleged in a Citation and Complaint issued by the Registrar of Contractors and “further breached the parties’ Settlement Agreement.” The Citation and Complaint alleges violation of the no-pay provision of the contractor licensing statutes. As noted above, Respondent did not appear at the compliance hearing; therefore, Complainant’s evidence is uncontested. Procedural Background On February 10, 2010, the Registrar of Contractors (“ROC”) issued n Order of Closing in this matter acknowledging that the parties had agreed to a settlement of the pending complaint. The agreement between the parties was noted in the Administrative Law Judge’s order vacating the hearing to consist of Respondent’s agreement to make periodic payments to Complainant in return for Complainant’s withdrawal of the complaint. Thereafter, Complainant contacted the ROC claiming that Respondent was not making payments in compliance with the agreement. Respondent admitted that it was not in compliance. In February 2011, the ROC issued an order reopening the case setting it for a compliance hearing. Introduction The ROC’s Order Re-Opening Complaint and Setting Compliance Hearing states that the parties are to present evidence as to “whether or not Respondent has committed the alleged violations set forth in the Registrar’s September 29, 2009 Citation and Complaint and further breached the parties’ Settlement Agreement. If the assigned Administrative Law Judge concludes that Respondent is in violation of the subsection of A.R.S. § 32-1154 as set forth in the Citation and Complaint and recommends that discipline is to be imposed upon Respondent’s License, and the Registrar adopts such recommendation, the discipline may be imposed immediately, based upon a finding that in addition to any violation of contracting laws that have been committed by Respondent, Respondent further breached the parties’ Settlement Agreement.” This tribunal entered the complaint file received from the Registrar of Contractors into the record, which includes documentation relating to the underlying complaint and relating to the question of compliance with the Settlement Agreement. 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 Recommended Order finding that the evidence shows that Respondent violated the no-pay provision and breached the Settlement Agreement. FINDINGS OF FACT 1. Respondent is the holder of license B-2.234232-C, a general commercial contracting license issued by the Registrar of Contractors (“ROC”). That license authorizes Respondent to perform general contracting work on commercial properties for up to $250,000.00, except for specialty areas such as plumbing, electrical, and other work that requires a specialty license. Daniel Whitworth is Respondent’s Qualifying Party. 2. Complainant is a subcontractor hired by Respondent to do ceiling tile replacement at a project Respondent was working at 1001 W. Southern Ave. in Mesa, Arizona in December 2007. Based on that agreement, Complainant claims that Respondent owes $5,357.00 for labor and materials Complainant provided. Complainant performed the work but was not paid any of the subcontract price. Paul Thompson, Complainant’s President, testified in support of the debt owed by Respondent. 3. In settlement of the ROC complaint that Complainant thereafter filed, Respondent agreed to make payments on the amount owed. The complaint was dropped by Complainant. Paul Thompson testified that Respondent never made even one payment after the complaint was dropped. 4. Complainant’s evidence is uncontested. 5. The evidence shows that Respondent owes Complainant $5,357.00 for subcontracting services and materials. The record also shows that Respondent breached the Settlement Agreement. 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] Therefore, Complainant bears the burden of showing, by a preponderance of the evidence, that Respondent has violated the statutes cited in the Citation and Complaint and has breached the Settlement Agreement.[3] 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 Respondent has violated that provision. 3. Respondent has failed to pay Complainant $5,357.00 that is due for services and materials in connection with Respondent’s work as a contractor. 4. Respondent’s license is currently active. 5. Respondent should immediately pay the amount due and if Respondent fails to do so, its license should be suspended until it does so. RECOMMENDED ORDER IT IS RECOMMENDED that license B-2.234232-C held by Respondent Curiel Whitworth Construction dba CWC Company be suspended on the effective date of the Registrar’s Order unless the Registrar of Contractors receives written proof of payment to Complainant of the sum of $5,357.00, and the Registrar 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 suspension shall not take place and case 2010-177547 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, June 10, 2011.

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