ALJDEC decisions subject to certification as final

2010A-308476197-ROC · Registrar of Contractors · 2012-06-20

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

COMPLIANCE HEARING: May 31, 2012, at 8:00 a.m. APPEARANCES: Complainant Gilbert Tiger Enterprises, Inc. dba D and R Construction was represented by Thomas S. Moring, Esq., Pak & Moring, P.L.C.; Respondent Wolverine North America Inc. was represented by James J. Palecek, Esq., Hunsaker & Palecek, P.L.L.C. ADMINISTRATIVE LAW JUDGE: Diane Mihalsky _____________________________________________________________________

FINDINGS OF FACT The Arizona Registrar of Contractors (“the Registrar”) issued License No. KB-1.257496-D to Wolverine North America Inc. (“Respondent”). The Registrar also issued a contractor’s license to Gilbert Tiger Enterprises Inc. doing business as (“dba”) D and R Construction (“Complainant”). Complainant filed a complaint to the Registrar against Respondent for its alleged failure to pay for a job that it had subcontracted to Complainant.

The Registrar issued a Citation and Complaint that charged Respondent with a violation of A.R.S. § 32-1154(A)(11). After Respondent failed to file a timely written answer, the Registrar issued a Default Decision and Order finding that pursuant to A.R.S. § 32-1155(B), Respondent’s failure to answer was deemed an admission of the charge contained in the Citation and Complaint. On March 22, 2012, the Registrar issued an Order Setting Compliance Hearing, providing in relevant part as follows: On January 18, 2011, the Registrar issued a Default Decision and Order in this matter providing that Respondent’s KB- 1.257496-D License would be suspended on the effective date of the Order and would remain suspended until Respondent provided the Registrar with written proof that it had paid Complainant the balance of the money Complainant claimed was due and owing in the amount of $14,825.00. If Respondent provided such written proof on or before the effective date of the Order, then its KB-1.257496-D License would not be suspended and the matter would be closed. The effective date of the Order was February 27, 2011.

On or about May 31, 2011, Respondent submitted written correspondence with the Registrar maintaining, among other things, that “[Complainant] has in fact been paid in full.” Respondent requested that this matter be closed, and the Registrar treated such submission as a Notice of Compliance and Request to Close.

On or about July 19, 2010 [sic], Counsel for Complainant filed a Response to the Notice of Compliance and Request to Close, with the Registrar maintaining, among other things, that “there are outstanding charges from the project for which [Complainant] remains unpaid.” On or about August 10[,] 2011, Counsel for Complainant filed a Supplemental Response to Request to Close maintaining, among other things, that “Respondent has not paid the amount owed to [Complainant]….”

Upon review and consideration of Respondent’s Notice of Compliance and Request to Close, Complainant’s Response, as well as the entire file in this matter, and with good cause appearing, IT IS ORDERED that a Compliance Hearing be scheduled in the expedited course of docketing in the Phoenix area. At the Compliance Hearing, the parties may offer evidence and testimony as to whether or not Respondent has complied with the terms and conditions of the Registrar’s January 18, 2011 [sic] issued in this matter. If it is determined that Respondent has failed to fully comply with the Registrar’s written directives, absent unreasonable interference or denial of access by Complainant, then Respondent’s KB-1.257496-D License shall be subject to the immediate imposition of discipline. . . .

The Registrar referred the matter to the Office of Administrative Hearings, an independent agency, for an evidentiary hearing on the issue of whether Respondent had complied with the Registrar’s Default Decision and Order. On May 31, 2012, a compliance hearing was held. Complainant presented the testimony of Charles Hibbard, Jr., Complainant’s qualifying party and officer. Complainant submitted one exhibit. Respondent elicited testimony that the parties’ subcontract required signed change orders and that all of the $14,825.00 that the Registrar’s Default Decision and Order required Respondent to pay Complainant was for additional work that was not memorialized in signed change orders. Respondent argued that contrary to the findings in the Registrar’s Default Decision and Order, it did not owe any money to Complainant. Respondent also asserted that it had submitted a change of address form, but that the Registrar failed to process the change of address form, and that Respondent did not receive either the Citation and Complaint or the Default Decision and Order. Respondent acknowledged that it had not paid Complainant any of the $14,825.00 that the Registrar’s Default Decision and Order required it to pay as a condition of keeping its license in good standing. Administrative notice is taken of Respondent’s prior License record as reflected on the Registrar’s public website. Such prior License record reflects that on June 19, 2012, Respondent’s license was current. CONCLUSIONS OF LAW This matter lies within the Registrar’s jurisdiction.[1] Respondent bears the burden of proof to establish by a preponderance of the evidence that it either complied with the Registrar’s Default Decision and Order or that Complainant failed to provide reasonable access for it to do so.[2] “A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.”[3] As the Registrar’s March 22, 2012 Order Setting Compliance Hearing informed the parties, the only issue at the compliance hearing was whether Respondent had complied with the Registrar’s Default Decision and Order. Respondent acknowledged that it had not complied with the Registrar’s Default Decision and Order. Respondent did not present any evidence to establish that Complainant failed to provide reasonable access to allow Respondent to comply with the Default Decision and Order. RECOMMENDED ORDER Based on the foregoing, it is recommended that the Registrar immediately suspend Respondent Wolverine North America Inc.’s License No. KB-1.257496-D. 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 the date of that certification.[4] Done this day, June 25, 2012.

/s/ Diane Mihalsky Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors ----------------------- [1] See A.R.S. § 32-1101 et seq. [2] See A.A.C. R2-19-119(B)(2); see also Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952). [3] Morris K. Udall, Arizona Law of Evidence § 5 (1960). [4] The Administrative Law Judge made the date of certification the effective date of the order because the Registrar’s Order Setting Compliance Hearing stated that if it was determined that Respondent did not fully comply with the Registrar’s Default Decision and Order, absent unreasonable denial of access by Complainant, Respondent’s license would be subject to immediate imposition of discipline.

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