ALJDEC decisions subject to certification as final

2010A-4115049-ROC · Registrar of Contractors · 2010-09-10

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: September 1, 2010

APPEARANCES: Complainant was represented by Sales Manager Michael Price and Office Manager Andrea King; no one appeared on behalf of Respondent.[1]

ADMINISTRATIVE LAW JUDGE: Eric A. Bryant _____________________________________________________________________

Complainant brings this action to force Respondent to pay a remaining balance for construction 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, as well as documents later marked as Exhibit A (tally sheets) into the record and took brief testimony from Michael Price and Andrea King. 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 $12,913.30 to Complainant or have its licensed revoked. FINDINGS OF FACT 1. Respondent is the holder of a Class A-21 engineering commercial contracting license (No. 216498) issued by the Registrar of Contractors (“ROC”). That license authorizes Respondent to perform installation of landscaping and irrigation systems for commercial properties. Marjorie Ann Andrews is Respondent’s sole proprietor and Qualifying Party. Respondent’s license was suspended for disciplinary reasons on August 25, 2010 and will remain suspended until Respondent complies with a disciplinary order. 2. Complainant is a material supplier of landscaping decorative rock from whom Respondent purchased materials for two projects in 2009 that are the subject of this complaint. Complainant’s witnesses briefly testified about the amounts past due from Respondent, and Exhibit A, tally sheets for the two projects, was entered into evidence. The individual invoices that Complainant is relying on were filed as attachments to the complaint filed with the ROC. Exhibit A shows that Respondent owes Complainant $12,913.30. 3. 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.[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 $12,913.30 that is due and owing for 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 Class A-21 license 216498, held by Respondent Marjorie Ann Andrews dba Extreme Landscape and Maintenance, 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 $12,913.30, 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 2010-4115049 (formerly T10- 0411) 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, September 10, 2010.

/s/ Eric A. Bryant Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors ----------------------- [1] Two employees of Respondent attended the hearing and tried to represent Respondent but were not allowed to do so by the Administrative Law Judge because Respondent is a sole proprietorship. Employees cannot represent a sole proprietor under Arizona Supreme Court Rule 31(d) exemptions. Additionally, a motion to continue the hearing was filed the day before the hearing by an employee of the Respondent sole proprietorship. The motion was not considered as it was not made by a proper representative. [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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Office of Administrative Hearings 1400 West Washington, Suite 101 Phoenix, Arizona 85007 (602) 542-9826