ALJDEC decisions subject to certification as final

2010A-308476276-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 this action 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.[1] In addition, the testimony of Keith Jeffreys in consolidated cases 2010A-[number redacted]-ROC and 2010A-[number redacted]-ROC (consolidated hearing held by the Office of Administrative Hearings on July 8, 2011) is incorporated into the evidence for this matter.[2] 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 revocation of Respondent’s license.

FINDINGS OF FACT 1. Respondent was the holder of license B-3.234328-R, a general residential contracting license issued by the Registrar of Contractors (“ROC”). That license authorized Respondent to perform general remodeling and repair of residential properties. Respondent’s license was revoked multiple times for multiple reasons in March 2011, June 2011, and July 2011. 2. Complainant is Keith Jeffreys, a licensed carpenter who worked on various remodeling projects at the direction of Anne DeMore. In May 2010 through August 2010, he billed for the work by invoice to Anne DeMore under the name Bella Interiors and Design LLC (“Bella”). However, the invoices were paid on checks from Respondent.[3] Those checks were signed by Randy Jordan. Complainant testified that Anne DeMore worked for Randy Jordan and Respondent. 3. Based on documents on file with the Arizona Corporation Commission, Randy Jordan was a member of the Respondent LLC as of May 2010.[4] Therefore, the evidence shows that Randy Jordan had authority to act for Respondent. Thus, this tribunal concludes that Randy Jordan acted on behalf of both Respondent and Bella in paying Complainant’s invoices. This pattern of Respondent paying Complainant’s invoices is evidence of a contractual obligation on Respondent’s part. Because Complainant’s evidence is uncontested, this tribunal finds a contractual relationship between Complainant and Respondent. 4. Many of the invoices were not paid. Those invoices are attached to Complainant’s complaint form and show that $3,480.14 remains unpaid. 5. 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.[5] Further, the standard of proof at hearing is by preponderance of the evidence.[6] 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.[7] 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 more than $750.00 that is due and owing for services and materials in connection with Respondent’s work as a contractor. 4. As noted above, Respondent’s license has been revoked multiple times. Pursuant to A.R.S. § 32-1154(C), the revocation 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. The appropriate sanction in this case is to revoke Respondent’s license. Given the multiple revocations of the license, there is no point to an order of restitution. RECOMMENDED ORDER IT IS RECOMMENDED that license B-3.234328-R, held by Premier Exteriors of Arizona dba Premier Remodeling of Arizona, be revoked.

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] The complaint file for this matter includes the complaint file for case 2010-[number redacted]. [2] These are related complaints brought by Complainant against Bella Interiors and Design LLC. [3] One payment, out of the nine payments documented, was made on a check drawn by Bella Interiors and Design LLC. [4] ROC records do not reflect Randy Jordan’s association with Respondent. [5] Utah Construction Company v. Berg et al, 68 Ariz. 285, 205 P.2d 367 (1949). [6] Smith v. Arizona Dept. of Transportation, 146 Ariz. 430, 706 P.2d 756 (App. 1985). [7] Culpepper v. State, 187 Ariz. 431, 437, 930 P.2d 508, 514 (Ct. App. 1996).

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