ALJDEC decisions subject to certification as final

2010A-308477007-ROC · Registrar of Contractors · 2011-06-14

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: May 27, 2011

APPEARANCES: Complainant appeared on his own behalf; no one appeared on behalf of Respondent.

WITNESSES: Todd Michaels

ADMINISTRATIVE LAW JUDGE: Eric A. Bryant _____________________________________________________________________

Complainant brings this action to force Respondent to pay a remaining balance for construction materials provided by a supplier as part of Respondent’s contracting business. Complainant alleges that the supplier has placed a lien on Complainant’s home due to failure of Respondent to pay the supplier for the materials installed. 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 a 15-page packet of exhibits submitted by Complainant, and took testimony from Todd Michaels. 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 $19,109.14 to the material supplier or have its licensed revoked. FINDINGS OF FACT 1. Respondent is the holder of license C-11.250672-R, a specialty residential contracting license issued by the Registrar of Contractors (“ROC”). That license authorizes Respondent to perform electrical contracting work on residential properties. ROC records do not list a Qualifying Party for the license. Raymond Henry Baxter is the sole Member. 2. Complainant purchased a solar power system, including solar panels, from Respondent in September 2009. The system was installed at Complainant’s home and Complainant paid the contract price in full to Respondent. 3. In September 2010, Complainant learned that the supplier who provided the materials to Respondent for installation at Complainant’s home, Consolidated Electrical Distributors (“CED”), was considering placing a materialman’s lien on Complainant’s home because Respondent had not paid CED for the materials. In October 2010, CED placed the lien of Complainant’s home, for the amount of $19,109.14. As of the time of hearing, the lien was still in place. 4. Complainant contacted Respondent and corresponded with Respondent regarding the outstanding debt to CED. Before the lien was placed, Respondent informed Complainant in a letter that Respondent did not have the money to pay CED. This means that Respondent took the money paid by Complainant to Respondent for the materials and used it for something other than paying it to CED for Complainant’s solar equipment. 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.[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 CED $19,109.14 that is due and owing for materials in connection with Respondent’s work as a contractor installing a solar system at Complainant’s house. 4. 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 C-11.250672-R held by Respondent Arizona Power Save, LLC be revoked on the effective date of the Registrar’s Order unless the Registrar of Contractors receives written proof of payment to Consolidated Electrical Distributors of the sum of $19,109.14 and written proof of the lifting of the lien held by Consolidated Electrical Distributors, 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, June 14, 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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