ALJDEC decisions subject to certification as final

2010A-308475595-ROC · Registrar of Contractors · 2011-04-27

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: April 8, 2011

APPEARANCES: Complainant was represented by its Vice President of Operations Amy Falk; 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 labor 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 marked Exhibits 1 through 5, and took testimony from Amy Falk. Based upon the entire record, the Administrative Law Judge makes the following Findings of Fact, Conclusions of Law, and Recommended Order, finding a violation of the contracting laws and recommending that Respondent be ordered to pay $1,103.32 to Complainant or have its licensed revoked. FINDINGS OF FACT 1. Respondent is the holder of license A-11.072000-C, a general engineering contracting license issued by the Registrar of Contractors (“ROC”). That license authorizes Respondent to perform fabrication, erection, repair, and alteration of structural steel and aluminum materials. Michael Mustovich is Respondent’s Qualifying Party. Respondent’s license expired on September 1, 2010. 2. Complainant is a provider of day laborers, and Respondent contracted with Complainant for a project Respondent was building in May 2010. Exhibits 1 through 5 are invoices for the labor provided by Complainant. According to the evidence submitted by Complainant, Respondent owes $1,103.32 for that labor. 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 $1,103.32 that is due and owing for services rendered to Respondent in connection with Respondent’s work as a contractor. 4. Respondent’s license is expired. Pursuant to A.R.S. § 32- 1154(C), the expiration 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 A-11.072000-C held by Respondent Alamo Steel Design, 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 $1,103.32, 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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