ALJDEC decisions subject to certification as final

2010A-308477037-ROC · Registrar of Contractors · 2011-06-13

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: May 23, 2011 APPEARANCES: A and H Installations was represented by its authorized representative, Henry Polk. J R A General Contracting, L.L.C. was represented by its authorized representative, Clarence Goodlett. ADMINISTRATIVE LAW JUDGE: Brian Brendan Tully _____________________________________________________________________ Based upon the evidence of record, the Administrative Law Judge makes the following Findings of Fact, Conclusions of Law, and Recommended Order: FINDINGS OF FACT 1. A and H Installations (“Complainant”) is an unlicensed contractor. 2. J R A General Contracting, L.L.C. (“Respondent”) is the holder of License No. 217532, a Class B-1 contracting license issued by the Registrar of Contractors (“Registrar”). 3. On November 9, 2010, Complainant filed a written Complaint with the Registrar alleging non-payment by Respondent in the amount of $2,698.73. The Registrar designated the Complaint as Case No. 2010- [number redacted]. 4. The Registrar issued a Citation and Complaint in Case No. 2010- [number redacted] charging Respondent with violating the provisions of A.R.S. § 32-1154(A) (10) and (11). 5. The Registrar forwarded Case No. 2010-[number redacted] to the Office of Administrative Hearings, an independent agency, for an evidentiary hearing. 6. The parties entered into a written agreement dated September 30, 2010, for the “installation of restroom partition and accessories and installed doors” by Complainant for Respondent on a project located at 2645 E. Osborne, Phoenix, Arizona. 7. The contract price for the subject project was $5,098.73. Respondent paid Complainant the sum of $2,400.00. 8. Complainant performed and completed its scope of work on October 3, 2010. 9. The owner of the subject project required that all contractors be properly licensed. The owner refused to pay for any work performed by an unlicensed contractor. 10. During the project the owner discovered that Complainant was an unlicensed contractor. The owner has refused to pay any amount to Respondent for Complainant’s unlicensed work, including reimbursing Respondent the $2,400.00 down payment for materials. 11. Respondent’s qualifying party, Clarence Goodlett, testified that he has known Complainant’s principal, Henry Polk, since 2002-2003. Mr. Goodlett further testified that he assumed that Complainant possessed a contracting license. Respondent never verified whether or not Complainant was properly license. 12. At hearing, Complainant presented as evidence its Customer Quick Report covering the period from June 1, 2008, through May 23, 2011. The Customer Quick Report lists numerous jobs performed by Complainant for Respondent. 13. Complainant seeks to obtain payment of the outstanding balance through the Registrar’s administrative disciplinary process. A.R.S. § 32-1153 prohibits an unlicensed contractor from collecting such a debt in civil court. 14. Respondent contends that any payment made to Complainant would be an act of aiding and abetting Complainant’s unlicensed activities. 15. A review of the Registrar’s official electronic licensing records reveals that there are two open complaints and one resolved/settled/ withdrawn complaint against Respondent’s contracting license. CONCLUSIONS OF LAW 1. The Registrar has jurisdiction over Respondent and the subject matter in this case. 2. Pursuant to A.A.C. R2-19-119(B), Complainant has the burden of proof in this matter. The standard of proof is by a preponderance of the evidence. A.A.C. R2-19-119(A). 3. Respondent violated the provisions of A.R.S. § 32-1154(A) (10) by aiding and abetting the unlicensed contracting activities of Complainant. 4. Complainant failed to sustain its burden of proving that Respondent violated the provisions of A.R.S. § 32-1154(A) (11) by failing to pay Complainant money in excess of $750.00. The evidence of record established that the project owner refused to pay Respondent for the scope of work performed by Complainant as an unlicensed contractor. 5. Pursuant to A.R.S. § 32-1156.01, the Administrative Law Judge declines to recommend that Respondent provide restitution to Complainant based upon the evidence of record. RECOMMENDED ORDER Respondent’s License No. 217532 shall be suspended for seven days commencing on the effective date of the Order entered in Case No. 2010- [number redacted] followed immediately by a period on 180 days probation. 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 13, 2011.

/s/ Brian Brendan Tully Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors -----------------------

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