ALJDEC decisions subject to certification as final

2011A-2381-ROC · Registrar of Contractors · 2011-08-23

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: August 9, 2011

APPEARANCES: Complainant was represented by authorized employees Karen Speros, Collection Agent, and Judy Foster, Office & Credit Manager; Respondent was not properly represented—Sookie Meyers appeared and represented that she was a proper representative, but as found below, she was not.

WITNESSES: Karen Speros Judy Foster Sookie Meyers (testimony not admitted)

ADMINISTRATIVE LAW JUDGE: Eric A. Bryant _____________________________________________________________________

Complainant brings this action claiming that it is owed $3,739.09 from Respondent for rental of a scissor lift, and a trailer to transport it, that Complainant provided to Respondent for Respondent to use in construction work. Respondent did not send a proper representative to the hearing and, therefore, failed to appear at the hearing. At the outset of the hearing, Sookie Meyers represented that she was a member of the Respondent LLC. However, after the hearing the Administrative Law Judge checked the ROC license records for Respondent and found that Sookie Meyers is not listed on the license as a member of the Respondent LLC. Due to this information, it is determined that Sookie Meyers was not a proper representative of Respondent, and Respondent is deemed to have failed to appear. In addition, none of the testimony submitted by Sookie Meyers is admitted into evidence. In sum, Respondent failed to appear and failed to submit any evidence. This means that Complainant’s evidence is uncontested. Moreover, in July 2011, Respondent filed with the ROC a letter that stated that Respondent is planning to file for bankruptcy. Respondent had not filed for bankruptcy as of the hearing date. In addition, this tribunal has received no notification of bankruptcy as of the date of this Administrative Law Judge Decision. This tribunal entered the complaint file received from the Registrar of Contractors into the record—along with Exhibits A, B-1, B-2, B-3, C-1, C- 2, and C-3 submitted by Complainant—and admitted the testimony of Karen Speros and Judy Foster. Based upon that record, the Administrative Law Judge makes the following Findings of Fact, Conclusions of Law, and Recommended Order finding a violation of the no-pay provision and recommending restitution. FINDINGS OF FACT 1. Respondent is the holder of license KB-1.215782-D, a dual general contractor license issued by the Registrar of Contractors (“ROC”). It authorizes Respondent to act as a general contractor for both residential and commercial projects. Respondent’s Qualifying Party is Jeffrey Meyers. 2. Complainant rented equipment to Respondent in April 2011 for construction work that Respondent was doing. The rental period was for two days and Respondent paid a small deposit of $150.49.[1] Respondent did not return the equipment for over six weeks. Complainant had to repossess the equipment and then charge Respondent for the time that Respondent possessed the equipment. That amount is $3,739.09.[2] 3. Respondent did not properly appear at the hearing to dispute Complainant’s evidence or provide evidence for a defense. 4. Complainant’s evidence is uncontested.

CONCLUSIONS OF LAW 1. The burden of proof at an administrative hearing is generally upon a complainant.[3] Further, the standard of proof at hearing is by preponderance of the evidence.[4] Therefore, Complainant bears the burden of showing, by a preponderance of the evidence, that Respondent has violated the statute cited in the Citation and Complaint.[5] 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. By failing to pay $3,739.09 to Complainant, Respondent has violated the no-pay provision. 4. A review of Respondent’s license history shows that the license is current and has had no disciplinary action. Based on that history, Respondent should be given a chance to pay Complainant and if Respondent does not do so, Respondent’s license should be suspended. RECOMMENDED ORDER Based on the foregoing, IT IS RECOMMENDED that license KB-1.215782-D, held by Respondent Fusion Design and Development LLC, be suspended on the effective date of the Registrar’s Order until the Registrar of Contractors receives written proof of payment to Complainant of the sum of $3,739.09, 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 suspension shall not take place and case 2011-2381 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, August 23, 2011.

/s/ Eric A. Bryant Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors ----------------------- [1] Exhibit B-1. [2] Exhibit B-3. [3] Utah Construction Company v. Berg et al, 68 Ariz. 285, 205 P.2d 367 (1949). [4] Smith v. Arizona Dept. of Transportation, 146 Ariz. 430, 706 P.2d 756 (App. 1985). [5] See Culpepper v. State, 187 Ariz. 431, 437, 930 P.2d 508, 514 (Ct. App. 1996) (moving party bears burden of proof by preponderance of evidence in an administrative hearing).

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