ALJDEC decisions subject to certification as final

2010A-308475612-ROC · Registrar of Contractors · 2011-03-23

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: March 8, 2011, at 8:00 a.m. APPEARANCES: Complainant CED dba Arizona Electric Supply appeared through Jeff Huffler, its Division Credit Manager; Respondent Sign Depot, Inc. did not appear. ADMINISTRATIVE LAW JUDGE: Diane Mihalsky _____________________________________________________________________

FINDINGS OF FACT In August 1998, the Arizona Registrar of Contractors (“the Registrar”) issued License No. ROC137918, Class L-38 for commercial signs to Sign Depot, Inc. (“Respondent”). Respondent’s address of record is 51 East Crescent Avenue, Mesa, Arizona 85210-8515. Scott Allen Jones is Respondent’s president and qualifying party. Consolidated Electrical Distributors (“CED”), doing business as (“dba”) Arizona Electric Supply (“Complainant”), is a supplier of electrical supplies to contractors like Respondent. On September 2, 2010, the Registrar received a complaint from Complainant against Respondent alleging that Respondent owed $1,316.70 for materials that Complainant had supplied to Respondent for use in its contracting business. The Registrar subsequently received Complainant’s request for hearing and on October 14, 2010, the Registrar issued a Citation and Complaint against Respondent, charging a violation of A.R.S. § 32-1154(A)(11). The Registrar mailed a copy of the Citation and Complaint to Respondent at its address of record. On October 28, 2010, the Registrar received a written answer to the Citation and Complaint from Mr. Jones, on Respondent’s behalf. Respondent’s written answer was on letterhead that showed Respondent’s address of record. Mr. Jones in the written answer acknowledged that Respondent owed Complainant money but alleged that it was trying to resolving the dispute by paying Complainant for two Light-Emitting Diode (“LED”) lights and returning the other two LED lights that Complainant had supplied. The Registrar referred the matter to the Office of Administrative Hearings (“the OAH”), an independent agency, for an evidentiary hearing. On January 19, 2011, the Registrar issued a Notice of Hearing setting a hearing on March 8, 2011, at 8:00 a.m. in the OAH. The Registrar mailed a copy of the Notice of Hearing to Respondent at its address of record. A hearing was held on March 8, 2011, at 8:00 a.m. Jeff Huffler, Complainant’s Division Credit Manager, testified and submitted four exhibits. Respondent did not request to appear telephonically at the hearing and did not request that the hearing be continued. Although the start of the duly noticed hearing was delayed fifteen minutes to allow Respondent additional travel time, Respondent did not appear, through an authorized officer, employee, or attorney, and did not contact the OAH to request that the start of the hearing be further delayed. Consequently, Respondent did not present any evidence. Mr. Huffler submitted invoices and statements to establish the following: (1) On April 20, 2010, Complainant shipped four LED lights to Respondent pursuant to its order; (2) Complainant charged $315.00 for each light, for a total of $1,260.00; and (3) Respondent accepted delivery of the lights on April 26, 2010. Mr. Huffler testified that Respondent has not made any payment on its account or made any attempt to return the LED lights. Mr. Huffler testified that after Complainant received Respondent’s written answer to the Registrar’s Citation and Complaint, Complainant contacted the manufacturer of the LED lights and learned that there was no credit available for their return. Mr. Huffler testified that as of the date of the hearing, Respondent owed $1,297.80 to Complainant, which represented the cost of the LED lights plus a small service charge. The Registrar’s record shows that Respondent’s license is current and in good standing. This is the only complaint pending against the license. CONCLUSIONS OF LAW 1. This matter lies within the Registrar’s jurisdiction.[1] 2. The Notice of Hearing that the Registrar mailed to Respondent at its address of record was reasonable and Respondent is deemed to have received notice of the hearing.[2] 3. Complainant bears the burden of proof and must establish statutory violations by a preponderance of the evidence.[3] 4. Complainant established that Respondent violated A.R.S. § 32-1154(A)(11)[4] by failing to pay Complainant more than $750.00 for materials that Respondent used in its contracting business. 5. With respect to the amount owed, the legislature has not empowered the Registrar to award service charges or interest in an administrative proceeding against a contractor’s license. Therefore, Respondent should pay Complainant the cost of the four LED lights, $1,260.00, as a condition of keeping its license in good standing. RECOMMENDED ORDER Based on the foregoing, it is recommended that on the effective date of the Registrar’s final order in this matter, the Registrar suspend Respondent Sign Depot, Inc.’s License No. ROC137918, Class L-38 until Respondent pays $1,260.00 to Complainant CED dba Arizona Electric Supply. It is further recommended that if on or before the effective date of the order, the Registrar receives satisfactory proof from Respondent that it has paid $1,260.00 to Complainant by cashier’s or certified check, the Registrar not suspend Respondent’s license but, instead, close the complaint in Case No. 2010-[number redacted]. 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, March 23, 2011.

/s/ Diane Mihalsky Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors ----------------------- [1] See 32-1101 et seq. [2] See A.R.S. §§ 41-1092.04; 41-1092.05(D). [3] See A.R.S. § 41-1092.07(G)(2); A.A.C. R2-19-119; see also Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952). [4] This statutory subsection includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, “[f]ailure by a licensee . . . to pay monies in excess of seven hundred fifty dollars when due for materials or services rendered in connection with the licensee’s operations as a contractor when the licensee has the capacity to pay or, if the licensee lacks the capacity to pay, when the licensee has received sufficient monies as payment for the particular construction work project or operation for which the services or materials were rendered or purchased.”

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