ALJDEC decisions subject to certification as final

2011A-1554-ROC · Registrar of Contractors · 2011-09-30

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: September 13, 2011, at 1:00 p.m. APPEARANCES: Complainant Fayette A C and Sheetmetal, Inc. appeared through Mark Fayette, its qualifying party and officer; Respondent Trim Werx Construction, Inc. did not appear. ADMINISTRATIVE LAW JUDGE: Diane Mihalsky _____________________________________________________________________

FINDINGS OF FACT In June 1998, the Arizona Registrar of Contractors (“the Registrar”) issued License Nos. ROC136206, Class K-39 for dual air conditioning, refrigeration and heating, and ROC136207, Class K-45 for dual sheet metal to Fayette A C and Sheetmetal, Inc. (“Complainant”). In April 2009, the Registrar issued License No. ROC254079, Class B-3 for residential general remodeling and repair contracting to Trim Werx Construction, Inc. (“Respondent”). Respondent’s address of record is 3201 Rocking Horse Drive, Lake Havasu City, Arizona 86406-5504. On March 14, 2011, the Registrar received a complaint from Complainant against Respondent alleging that Respondent owed $2,085.98 for contracting work that Complainant performed pursuant to its subcontract with Respondent at 3235 Palm Grove, Lake Havasu City, Arizona. The Registrar subsequently received Complainant’s request for hearing. On March 17, 2011, the Registrar issued a Citation and Complaint against Respondent, charging a violation of A.R.S. § 32-1154(A)(11). The Registrar mailed a copy of the Citation and Complaint to Respondent at its address of record. Respondent filed a timely written answer to the Registrar’s Citation and Complaint, denying any statutory violation. Respondent’s written answer was on letterhead that showed Respondent’s address of record. The Registrar referred the matter to the Office of Administrative Hearings (“the OAH”), an independent agency, for an evidentiary hearing. On July 1, 2011, the Registrar issued a Notice of Hearing setting a hearing on August 15, 2011, at 1:00 p.m. at the Registrar’s office in Lake Havasu City. The Registrar mailed a copy of the Notice of Hearing to Respondent at its address of record. On July 15, 2011, Complainant moved to continue the hearing because its qualifying party, Mark Fayette, planned to be out-of-state on the scheduled hearing date. After Respondent failed to respond to the motion in the time allowed, on July 29, 2011, the Administrative Law Judge issued an order continuing the hearing to September 13, 2011, at 1:00 p.m. The OAH mailed a copy of the order continuing the hearing to Respondent at its address of record. A videoconference hearing was held on September 13, 2011, at 1:00 p.m. Complainant submitted nine exhibits and presented the testimony of two witnesses: (1) Mr. Fayette; and (2) Gaylen Chenette, Complainant’s office manager. Respondent did not request to appear telephonically at the continued hearing and did not request that the hearing be continued a second time. Although the start of the duly noticed continued hearing was delayed fifteen minutes to allow Respondent additional travel time, Respondent did not appear, through an authorized officer, employee, or attorney, and did not contact the OAH to request that the start of the hearing be further delayed. Consequently, Respondent did not present any evidence to defend its license. Complainant presented evidence to establish the following: (1) In early May 2009, Respondent’s qualifying party, Shaun Shakely, called Complainant to request that it perform ductwork for Respondent on a remodeling project at 3235 Palm Grove; (2) On or about May 13, 2009, Complainant completed the work that Respondent requested; (3) On or about May 14, 2009, Complainant sent an invoice to Respondent for the work in the amount of $2,285.98; (4) On or about June 2, 2010, and on or about July 19, 2010, Respondent made two $100.00 payments to Complainant with checks drawn on Respondent’s business account, with the notation, “Palm Grove,” used to identify the project for which the payments were made; and (5) Respondent made no further payments on its debt to Complainant, and $2,085.98 remains outstanding. The Registrar’s electronic record shows that on November 15, 2010, Respondent’s license was revoked for failure to pay a civil penalty. CONCLUSIONS OF LAW 1. This matter lies within the Registrar’s jurisdiction.[1] 2. The Notice of Hearing that the Registrar mailed to Respondent at its address of record and the order continuing the hearing that the OAH mailed to Respondent at its address of record were reasonable and Respondent is deemed to have received notice of the continued hearing.[2] 3. Complainant bears the burden of proof to establish a statutory violation by a preponderance of the evidence.[3] “A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.”[4] 4. Complainant established that Respondent violated A.R.S. § 32-1154(A)(11)[5] by failing to pay Complainant $2,085.98 for its performance of work pursuant to its subcontract with Respondent on the Palm Grove project. \ \ \ \ \ \ \ \ \ RECOMMENDED ORDER Based on the foregoing, it is recommended that on the effective date of the Registrar’s final order in this matter, the Registrar revoke Respondent Trim Werx Construction, Inc.’s License No. ROC254079. It is further recommended that if on or before the effective date of the order, the Registrar receives satisfactory proof from Respondent that it has paid $2,085.98 to Complainant Fayette A C and Sheetmetal, Inc. by cashier’s or certified check, the Registrar not revoke Respondent’s license but, instead, close the complaint in Case No. 2011-1554. 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 30, 2011.

/s/ Diane Mihalsky Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors ----------------------- [1] See 32-1101 et seq. [2] See A.R.S. §§ 41-1092.04; 41-1092.05(D). [3] See A.R.S. § 41-1092.07(G)(2); A.A.C. R2-19-119; see also Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952). [4] Morris K. Udall, Arizona Law of Evidence § 5 (1960). [5] This statutory subsection includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, “[f]ailure by a licensee . . . to pay monies in excess of seven hundred fifty dollars when due for materials or services rendered in connection with the licensee’s operations as a contractor when the licensee has the capacity to pay or, if the licensee lacks the capacity to pay, when the licensee has received sufficient monies as payment for the particular construction work project or operation for which the services or materials were rendered or purchased.”

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