ALJDEC decisions subject to certification as final

2010A-24725921-ROC · Registrar of Contractors · 2010-07-20

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: July 19, 2010

APPEARANCES: Complainant was represented by Controller Judy Brown; no one appeared on behalf of Respondent.

ADMINISTRATIVE LAW JUDGE: Eric A. Bryant _____________________________________________________________________

Complainant brings this action to force Respondent to pay a remaining balance for construction materials provided to Respondent as part of Respondent’s contracting business. As noted above, Respondent did not appear at the hearing; therefore, Complainant’s evidence is uncontested. This tribunal entered the complaint file received from the Registrar of Contractors, as well as marked Exhibit A (“Master Invoice” listing all amounts due by invoice) into the record and took brief testimony from Judy Brown. Based upon the entire record, the Administrative Law Judge makes the following Findings of Fact, Conclusions of Law, and Decision, finding violation of the law and recommending that Respondent be ordered to pay $17,833.02 to Complainant or have its licensed suspended. FINDINGS OF FACT 1. Respondent R B Building Systems, LLC, is the holder of a class L- license (No. 243506), a specialty commercial contractor’s license issued by the Registrar of Contractors (“ROC”). It authorizes Respondent to perform construction work on air conditioning and refrigeration systems in commercial buildings. Roger Buttrum is Respondent’s Qualifying Party. 2. Complainant is a material supplier of HVAC equipment from whom Respondent purchased materials for several construction projects throughout the year 2009. Judy Brown briefly testified about the amounts past due from Respondent, and Exhibit A, a Master Invoice that supports the claim, was entered into evidence. The individual invoices that Complainant is relying on were filed as attachments to the complaint filed with the ROC. Exhibit A shows that Respondent owes Complainant $17,833.02. 3. Respondent did not appear at the hearing to dispute Complainant’s evidence. CONCLUSIONS OF LAW 1. The burden of proof at an administrative hearing is generally upon a complainant.[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.[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 $17,833.02 that is due and owing in connection with Respondent’s work as a contractor. 4. Respondent’s license is current and active. Respondent should be given an opportunity to pay the remaining balance and if Respondent fails to do so, its license should be suspended. RECOMMENDED ORDER IT IS RECOMMENDED that Class L-39 license 243506, held by Respondent R B Building Systems, LLC, 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 $17,833.02, 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 2010-24725921 (formerly 10- 2472) 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, July 20, 2010.

/s/ Eric A. Bryant Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors ----------------------- [1] Utah Construction Company v. Berg et al, 68 Ariz. 285, 205 P.2d 367 (1949). [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