ALJDEC decisions subject to certification as final

2011A-2451-ROC · Registrar of Contractors · 2011-11-07

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: October 31, 2011

APPEARANCES: Complainant was represented by corporate Vice President Shawn Cummins; no one appeared on behalf of Respondent.

ADMINISTRATIVE LAW JUDGE: Eric A. Bryant _____________________________________________________________________

Complainant brings this action to force Respondent to pay a remaining balance for subcontracting services 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 into the record and took brief testimony from Shawn Cummins. Based upon the entire record, the Administrative Law Judge makes the following Findings of Fact, Conclusions of Law, and Recommended Order, finding violation of the law and recommending that Respondent be ordered to pay $3,813.57 to Complainant or have its licensed suspended. FINDINGS OF FACT 1. Respondent is the holder of license KB-2.214972-D, a dual residential and small commercial contractor’s license issued by the Registrar of Contractors (“ROC”). The license authorizes Respondent to perform general residential and general small commercial construction. William Fish is the Qualifying Party. 2. Complainant is a flooring subcontractor which Respondent hired for several projects Respondent was doing in 2009. Complainant submitted three unpaid invoices for three separate projects: (1) carpet and installation at Buckeye Road and 83rd Avenue in Phoenix for $2,026.46 on October 22, 2009; (2) carpet and installation at Thomas Road and 16th Street in Phoenix for $847.43 on November 6, 2009; and (3) vinyl installation at Hawes and Baseline in Mesa for $939.68 on November 11, 2009. According to the evidence submitted by Complainant, Respondent owes Complainant a total of $3,813.57. 3. Respondent did not appear at the hearing to dispute Complainant’s evidence.[1] 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 statute 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. By failing to pay $3,813.57 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 since it was issued in 2005. Based on that good 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-2.214972-D, held by Respondent W F Tenant Improvements, Inc., 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 $3,813.57, 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 2011-2451 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, November 7, 2011.

/s/ Eric A. Bryant Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors

----------------------- [1] There is evidence in the file showing that Respondent’s principals filed personal bankruptcy. Since this matter is a regulatory matter brought against the entity known as W F Tenant Improvements, Inc. and not against its principals personally, the bankruptcy proceeding does not preclude this disciplinary proceeding. [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] 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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Office of Administrative Hearings 1400 West Washington, Suite 101 Phoenix, Arizona 85007 (602) 542-9826