ALJDEC decisions subject to certification as final

2010A-28107869-ROC · Registrar of Contractors · 2010-08-17

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: August 10, 2010

APPEARANCES: Complainant was represented by company President Jeremy Yohn; 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 and labor provided to Respondent under subcontracting agreements made 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 into the record and took brief testimony from Jeremy Yohn. Based upon the entire record, the Administrative Law Judge makes the following Findings of Fact, Conclusions of Law, and Recommended Order, finding violation of the law and recommending that Respondent be ordered to pay $3,211.31 to Complainant or have its licensed revoked. FINDINGS OF FACT 1. Respondent is the holder of a class B general residential contractor license (No. 172831) issued by the Registrar of Contractors (“ROC”). That license authorizes Respondent to perform general residential construction of a structure or appurtenance, except for certain specialty contracting such as electrical, plumbing, swimming pools, etc. James Wilcox is Respondent’s Qualifying Party. 2. Complainant is a subcontractor from whom Respondent purchased materials and labor for several construction projects in the years 2009 and 2010 (four residential jobs). Complainant made partial payments but has not paid in full. Jeremy Yohn briefly testified about the amounts past due from Respondent. The individual invoices that Complainant is relying on were filed as attachments to the complaint filed with the ROC. They show that Respondent owes Complainant $3,211.31 in total. 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 $3,211.31 that is due and owing in connection with Respondent’s work as a contractor. 4. Respondent’s license is currently suspended for non-renewal, which was due in March 2010. Respondent should be given an opportunity to pay the remaining balance due and if Respondent fails to do so, its license should be revoked. RECOMMENDED ORDER IT IS RECOMMENDED that Class B license 172831, held by Respondent Pinnacle View Custom, Inc., be revoked 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 $3,211.31, 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 revocation shall not take place and case 2010-28107869 (formerly 10- 2810) 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, August 17, 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