ALJDEC decisions subject to certification as final

2010A-27179662-ROC · Registrar of Contractors · 2010-09-13

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: September 9, 2010

APPEARANCES: Complainant was represented by attorney Chase Halsey, accompanied by Complainant’s Managing Member Chuck Schoffstall; 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 services 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 Exhibits 1 through 10 into the record and took testimony from Chuck Schoffstall. 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 $30,293.62 to Complainant or have its licensed revoked. FINDINGS OF FACT 1. Respondent is the holder of a class B-1 general commercial contractor license (No. 198760) issued by the Registrar of Contractors (“ROC”). That license authorizes Respondent to perform general construction of a commercial structure or appurtenance, except for certain specialty contracting such as electrical, plumbing, swimming pools, etc. Roger Buttrum is Respondent’s Qualifying Party. Respondent’s license was suspended for non-renewal on September 1, 2010. 2. Complainant provides testing and balancing services for large HVAC systems. This includes adjustments and repairs. Therefore, Complainant provides materials and services related to construction. Complainant was hired by Respondent to provide those services for multiple projects. 3. Complainant filed twelve separate complaints in this matter, one for each unpaid invoice. One of those was paid, but not by Respondent, leaving eleven unpaid invoices. The complaints and invoices are found in Exhibits 1 through 10. Chuck Schoffstall testified as to each one of them at the hearing. 4. The Exhibits and testimony show that Respondent owes Complainant $30,293.62 for materials and services rendered in connection with Respondent’s operations as a contractor. 5. 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 $30,293.62 that is due and owing. 4. Respondent’s license is currently suspended. The suspension of Respondent’s licenses does not preclude discipline. Pursuant to A.R.S. § 32-1154(C), the suspension of a license does not deprive the ROC or this tribunal of jurisdiction and does not render the Registrar powerless to discipline the license. 5. Respondent should be given an opportunity to pay the remaining balance and if Respondent fails to do so, its license should be revoked. RECOMMENDED ORDER IT IS RECOMMENDED that Class B-1 license 198760, 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 $30,293.62, 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 2010-27179662 (formerly 10- 2717) 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, September 13, 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).

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

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