ALJDEC decisions subject to certification as final

2010A-308476299-ROC · Registrar of Contractors · 2011-04-27

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: April 8, 2011

APPEARANCES: Complainant was represented by corporate President Rafael Ramirez; 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 Rafael Ramirez. 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 that Respondent be ordered to pay $2,668.40 to Complainant or have its licensed revoked. FINDINGS OF FACT 1. Respondent is the holder of license B-1.154609-C, a general commercial contracting license issued by the Registrar of Contractors (“ROC”). That license authorizes Respondent to perform general contracting work on commercial properties, except for specialty areas such as plumbing, electrical, and other work that requires a specialty license. James Yarborough is Respondent’s Qualifying Party. Respondent’s license was suspended for disciplinary reasons on February 2, 2011, and will remain suspended until Respondent complies with a disciplinary order. 2. Complainant is a plumbing subcontractor, and Respondent hired Complainant for a project Respondent was building in January 2008. Respondent paid most of the contract price between the parties, but has not paid a remaining balance due since 2009. Respondent made a payment in April 2009, but has not made any payments since. According to the evidence submitted by Complainant, Respondent still owes $2,668.40. 3. Respondent did not appear at the hearing to dispute Complainant’s evidence.[1] CONCLUSIONS OF LAW 1. The burden of proof at an administrative hearing is generally upon a complainant.[2] Further, the standard of proof at hearing is by preponderance of the evidence.[3] 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.[4] 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 $2,668.40 that is due and owing for services and materials in connection with Respondent’s work as a contractor. 4. Respondent’s license is currently suspended. The suspension of Respondent’s licenses does not preclude discipline. Pursuant to A.R.S. § 32-1154(C), the suspension 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 B-1.154609-C held by Respondent Yarborough Development, 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 $2,668.40, 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] Complainant brought to the hearing documentation showing that James Yarborough filed personal bankruptcy (Chapter 11) on February 4, 2011. A copy of that information has been added to the OAH file. Since this matter is a regulatory matter brought against the entity known as Yarborough Development, Inc. and not against James Yarborough personally, the bankruptcy proceeding does not preclude this disciplinary proceeding. [2] Utah Construction Company v. Berg et al, 68 Ariz. 285, 205 P.2d 367 (1949). [3] Smith v. Arizona Dept. of Transportation, 146 Ariz. 430, 706 P.2d 756 (App. 1985). [4] Culpepper v. State, 187 Ariz. 431, 437, 930 P.2d 508, 514 (Ct. App. 1996).

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