ALJDEC decisions subject to certification as final

2010A-308472572-ROC · Registrar of Contractors · 2011-04-27

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: April 12, 2011

APPEARANCES: Complainant was represented by Credit Specialist Camille King, who appeared by telephone; 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 into the record, along with an exhibit packet submitted prior to the hearing by Complainant, and took brief testimony from Camille King. 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 $4,529.87 to Complainant or have its licensed revoked. FINDINGS OF FACT 1. Respondent is the holder of license KB-2.189308-D, a dual residential and small commercial contractor’s license issued by the Registrar of Contractors (“ROC”). The license authorizes Respondent to perform general residential and general small commercial construction. Gary Shults is the Qualifying Party. The license was cancelled on March 14, 2011. 2. Complainant is a material supplier from which Respondent purchased materials for use in Respondent’s construction business throughout calendar year 2009. Respondent entered into a Credit Application and Agreement with Complainant that provided terms for payment of the materials. Complainant’s witness, Camille King, briefly testified about the amounts past due from Respondent, referring to individual invoices attached to the complaint filed with the ROC. The evidence presented shows that Respondent owes Complainant a total amount of $4,529.87. 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 $4,529.87 that is due for materials in connection with Respondent’s work as a contractor. 4. Respondent’s license is cancelled. Pursuant to A.R.S. § 32- 1154(C), the cancellation 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 license KB-2.189308-D held by Respondent Accurate and Diverse Construction, LLC 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 $4,529.87, 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-[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, April 27, 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] 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