ALJDEC decisions subject to certification as final

2010A-308472115-ROC · Registrar of Contractors · 2011-08-23

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: August 8, 2011

APPEARANCES: Complainant was represented by corporate President Keith Tanko; Respondent appeared on his own behalf.

WITNESSES: Keith Tanko Jack Rohr Linda Perkins

ADMINISTRATIVE LAW JUDGE: Eric A. Bryant _____________________________________________________________________

Complainant brings this action claiming that it is owed $2,592.50 from Respondent for excavation services Complainant provided to Respondent. Respondent admits that it owes Complainant the amount claimed, but denies that Respondent has the capacity to pay, which is a defense to a violation of the no-pay provision of Arizona Revised Statutes (A.R.S.) § 32- 1154(A)(11). This tribunal entered the complaint file received from the Registrar of Contractors into the record, and heard testimony from the witnesses listed above. Based upon the record, the Administrative Law Judge makes the following Findings of Fact, Conclusions of Law, and Recommended Order finding a violation of the no-pay provision and recommending restitution.

FINDINGS OF FACT 1. Respondent is the holder of license L-37.083312-C, a specialty commercial plumbing contractor license issued by the Registrar of Contractors (“ROC”). It authorizes Respondent to install and repair plumbing for commercial properties. As a sole proprietor, Jack Rohr is owner and Qualifying Party. 2. The parties agree that in April 2009, Respondent hired Complainant to do excavation work under a verbal contract at $85 per hour for a job in which Respondent was the plumbing subcontractor. The parties agree that Complainant performed 30.5 hours of work in May 2009, and that Respondent owes Complainant $2,592.50 for that work. 3. Respondent testified at the hearing, along with his secretary Linda Perkins, that he never had the capacity to pay Complainant because he was only partially paid for his work by the general contractor. They testified, and the documentation attached to the answer shows, that Respondent’s contract price with the general contractor was $16,480.00. The general contractor made two payments to Respondent. First, Respondent was paid $4,755.16 in a joint check with its material supplier, and then the general contractor made a second payment of $7,543.56 without restriction. After those two payments, a dispute arose between Respondent and the general contractor and no further payments were made. 4. Respondent and Linda Perkins also testified that Respondent suffered a stroke in October 2008, and that the business is fading out because of Respondent’s health. They testified that the last job Respondent performed was in February 2010. Respondent submitted no documentation showing the business’s financial condition. 5. The evidence does not support Respondent’s claim of lack of capacity to pay Complainant. Respondent received $7,543.56 for the job, which gave Respondent the capacity to pay the $2,592.50 bill owed to Complainant. In addition, because excavation is generally the first activity when installing plumbing, the evidence shows that Respondent was paid for the work performed by Complainant.

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 statute 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. By failing to pay $2,592.50 to Complainant out of the $7,543.56 that Respondent received, Respondent has violated the no-pay provision. 4. A review of Respondent’s license history shows that the license is current and has had no disciplinary action since it was issued in 1989. Based on that excellent history, Respondent should be given a chance to pay Complainant and if Respondent does not do so, Respondent’s license should be suspended. RECOMMENDED ORDER Based on the foregoing, IT IS RECOMMENDED that license L-37.083312-C, held by Respondent John Francis Rohr dba San Cor, be suspended on the effective date of the Registrar’s Order until the Registrar of Contractors receives written proof of payment to Complainant of the sum of $2,592.50, 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-[number redacted] 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 23, 2011.

/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] See Culpepper v. State, 187 Ariz. 431, 437, 930 P.2d 508, 514 (Ct. App. 1996) (moving party bears burden of proof by preponderance of evidence in an administrative hearing).

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