ALJDEC decisions subject to certification as final

2011A-2050-ROC · Registrar of Contractors · 2011-09-16

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: August 30, 2011 APPEARANCES: Martha Hernandez appeared personally. John H. Wright and Company, Inc. was represented by its authorized representative, J. D. Wright. 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. John H. Wright and Company, Inc. (“Respondent”) is the holder of License No. 056998, a Class B residential general contractor license issued by the Registrar of Contractors (“Registrar”). Respondent is also the holder of other contracting licenses. 2. Martha Hernandez (“Complainant”) is a principal of M & R Janitorial. 3. On April 7, 2011, Complainant filed a written Complaint with the Registrar alleging nonpayment by Respondent to Complainant in the total amount of $1,348.00 for work performed on a commercial project at Rightway Healthcare in Casa Grande, Arizona. The Registrar designated the Complaint as Case No. 2011-2050. 4. The Registrar issued a Citation and Complaint in Case No. 2011-2050 charging Respondent’s residential License No. 056998 with violating the provisions of A.R.S. § 32-1154(A) (11). 5. The Registrar forwarded Case No. 2011-2050 to the Office of Administrative Hearings, an independent agency, for an evidentiary hearing. 6. Respondent was the general contractor for the subject commercial project. Respondent performed its work under its Class B-01 contracting License No. 072853. 7. From April 27, 2010, through April 30, 2010, Complainant’s janitorial service stripped and waxed the floors at the subject commercial project. Complainant’s business charged Respondent the sum of $1,200.00 for those services. 8. On May 3, 2010, Complainant’s janitorial service re-cleaned the floors. Complainant’s business charged Respondent the sum of $275.00 for those services. 9. Respondent has not paid Complainant’s business the total sum of $1,348.00. Respondent has been paid a substantial amount of the contract price with the owner of the subject property, but has not been paid in full. 10. The parties do not have a “pay when paid” agreement. 11. Respondent failed to present credible evidence that it has an inability to pay the debt owed to Complainant’s janitorial service. 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 utilized its commercial License No. 072853, a Class B-01 contracting license, on the subject project. Therefore, Respondent’s residential License No. 056998 cannot be held to have violated the provisions of A.R.S. § 32-1154(A) (11) because the subject project was a commercial project not a residential project. RECOMMENDED ORDER The Citation and Complaint in Case No. 2011-2050 against Respondent’s residential License No. 056998 shall be dismissed on the effective date of the Order entered in this matter. 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 16, 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