ALJDEC decisions subject to certification as final

2010A-308474922-ROC · Registrar of Contractors · 2011-07-28

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: July 8, 2011

APPEARANCES: Complainant was represented by its sole proprietor Keith Jeffreys; no one appeared on behalf of Respondent.

ADMINISTRATIVE LAW JUDGE: Eric A. Bryant _____________________________________________________________________

Complainant brings these consolidated actions to force Respondent to pay a remaining balance for construction labor and 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 and took brief testimony from Keith Jeffreys. 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 $3,480.14 to Complainant or have its licensed revoked. FINDINGS OF FACT 1. Respondent is the holder of license K-5.223756-D, a class K-5 dual specialty contracting license issued by the Registrar of Contractors (“ROC”). That license authorizes Respondent to perform “interior design, non-structural” work for both residential and commercial projects. Respondent’s class K-5 license was suspended for lack of Qualifying Party on April 14, 2011. The last Qualifying Party on the license was Anne Margaret DeMore, who resigned in February 2011. 2. Respondent is also the holder of license B.245337-R, a class B general residential contracting license issued by the Registrar of Contractors (“ROC”). That license authorizes Respondent to operate as a general contractor for residential projects. Respondent’s class B license was also suspended for lack of Qualifying Party on April 14, 2011. The last Qualifying Party on the class B license was Anne Margaret DeMore, who resigned in February 2011. 3. Complainant is Keith Jeffreys, a licensed carpenter who Respondent hired for various projects Respondent was remodeling. In April 2010, Anne DeMore on behalf of Respondent requested a price list from Complainant. Thereafter, Complainant was hired by Respondent via verbal request and e-mail to do cabinetry work on various projects that Complainant then billed by invoice. This process occurred at least through August 2010. The invoices were issued to Respondent and some of them were paid. However, they were paid on checks from “Premiere Remodeling.”[1] Those checks were signed by Randy Jordan. 4. Based on documents on file with the Arizona Corporation Commission, Randy Jordan was a member of the Respondent LLC as of May 5, 2010.[2] Therefore, the evidence shows that Randy Jordan had authority to act for Respondent. He was also a member of Premier Exteriors of Arizona, LLC (“Premier”), a contractor that also held a class B license. Thus, this tribunal concludes that Randy Jordan acted on behalf of both Respondent and Premier in paying Complainant’s invoices. 5. Many of the invoices were not paid. Those invoices are attached to Complainant’s complaint form and show that $3,480.14 remains unpaid. 6. 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.[3] Further, the standard of proof at hearing is by preponderance of the evidence.[4] 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.[5] 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 $3,480.14 that is due and owing for services and materials in connection with Respondent’s work as a contractor. 4. Respondent’s licenses are currently suspended. 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 of $3,480.14 and if Respondent fails to do so, its licenses should be revoked. RECOMMENDED ORDER IT IS RECOMMENDED that licenses K-5.223756-D and B.245337-R, held by Bella Interiors and Design, 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 $3,480.14, 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 revocations shall not take place and cases 2010-[number redacted] and 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, July 28, 2011.

/s/ Eric A. Bryant Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors ----------------------- [1] One payment, out of the nine payments documented, was made on a check drawn by Respondent. [2] ROC records do not reflect that Randy Jordan was a Member of the Respondent LLC. [3] Utah Construction Company v. Berg et al, 68 Ariz. 285, 205 P.2d 367 (1949). [4] Smith v. Arizona Dept. of Transportation, 146 Ariz. 430, 706 P.2d 756 (App. 1985). [5] Culpepper v. State, 187 Ariz. 431, 437, 930 P.2d 508, 514 (Ct. App. 1996).

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