ALJDEC decisions subject to certification as final

2010A-308475579-ROC · Registrar of Contractors · 2011-05-06

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: April 11, 2011 APPEARANCES: Stewart Paving and Wall Systems, L.L.C. was represented by its authorized representative, Sheila Dudderar ADMINISTRATIVE LAW JUDGE: Brian Brendan Tully _____________________________________________________________________ Based upon the evidence of record, the Administrative Law Judge makes the following Findings of Fact, Conclusions of Law, and Recommended Order: FINDINGS OF FACT 1. Stewart Paving and Wall Systems, L.L.C. (“Complainant”) is the holder of License No. 172559, a Class K-5 contracting license issued by the Registrar of Contractors (“Registrar”). 2. Casas Bonitas Development, L.L.C. (“Respondent”) is the holder of License No. 214567 issued by the Registrar. 3. On April 29, 2010, David Christian Dalton resigned as Complainant’s qualifying party. As a result, Complainant was required to obtain a new qualifying party within 60 days to maintain an active license. 4. In May 2010, the parties entered into a contract for Complainant to install concrete pavers in a patio and driveway for a residence being constructed at 8365 N. Tumbling R Ranch Place, Tucson, Arizona. On May 27, 2010, Respondent paid Complainant a down payment in the amount of $7,000.00. 5. On June 29, 2010, Complainant’s License No. 172559 was suspended for lack of a qualifying party. As a result of that suspension, Complainant could not legally perform contracting until its license was reinstated. Sheila Donel Dudderar became Complainant’s qualifying party on September 14, 2010, resulting in the license being reinstated in good standing. 6. Complainant completed its scope of work on July 2, 2010. 7. On August 31, 2010, Complainant filed a written Complaint with the Registrar alleging non-payment by Respondent in the amount of $15,806.25. The Registrar designated the Complaint as Case No. 2010- [number redacted]. 8. The Registrar issued a Citation and Complaint in Case No. 2010- [number redacted] charging Respondent with violating the provisions of A.R.S. § 32-1154(A) (11). 9. The Registrar forwarded Case No. 2010-[number redacted] to the Office of Administrative Hearings, an independent agency, for an evidentiary hearing. 10. The evidence of record established that Respondent owes Complainant for the work performed by Complainant up to June 29, 2010,[1] when Complainant’s license was suspended by operation of law for lack of a qualifying party. Once its license was suspended, Complainant could not lawfully perform contracting. The parties did not establish the value of Complainants work performed up to June 29, 2011. However, there is credible evidence to establish that the value of that work exceeds $750.00. CONCLUSIONS OF LAW 1. The Registrar has jurisdiction over Respondent and the subject matter in this case. 2. Pursuant to A.A.C. R2-19-119(B), Complainant has the burden of proof in this matter. The standard of proof is by a preponderance of the evidence. A.A.C. R2-19-119(A). 3. Pursuant to A.R.S. § 32-1167(B), Complainant had 60 days from Mr. Dalton’s disassociation from Complainant’s contracting license on April 29, 2010, to qualify through another person. During the 60-day period, Complainant was permitted to continue contracting. Since Complainant did not qualify through another person during the 60- period, Complainant’s contracting license was suspended by operation of law on June 29, 2010, until Complainant qualified through Ms. Dudderar on September 14, 2010. 4. Respondent violated the provisions of A.R.S. § 32-1154(A) (11), as charged in the Citation and Complaint issued by the Registrar. The value owed by Respondent exceeds $750.00. Respondent is responsible for paying Complainant the value of Complainant’s completed work as of June 29, 2010. RECOMMENDED ORDER Respondent’s License No. 214567 shall be suspended on the effective date of the Order entered in Case No. 2010-[number redacted] until the Registrar receives written proof, and accepts such proof, that Respondent has paid Complainant the value of Complainant’s completed work as of June 29, 2010. If the Registrar receives written proof, and accepts such proof, that Respondent has paid Complainant the value of the work performed by Complainant as of June 29, 2010, on or before the effective date of the Order entered in Case No. 2010-[number redacted], then the above-provided license suspension shall not take place. In addition to the above-provided license suspension, if any, Respondent’s License No. 214567 shall be placed on disciplinary probation for a period of 90 days commencing on the effective date of the Order entered in Case No. 2010-[number redacted] or the date on which the Registrar approves written proof that Respondent has paid Complainant the value of Complainant’s work completed by June 29, 2010, whichever is later. 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, May 6, 2011.

/s/ Brian Brendan Tully Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors ----------------------- [1] The evidence of record did not establish the value of the work performed by Complainant while it was properly licensed.

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

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