ALJDEC decisions subject to certification as final

2011A-3239-ROC · Registrar of Contractors · 2012-02-03

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: February 3, 2012, at 1:00 p.m. APPEARANCES: The Complainant appeared through its authorized representative, Chuck Rudolph. The Respondent failed to appear. ADMINISTRATIVE LAW JUDGE: M. Douglas

Evidence and testimony were presented and the following Findings of Fact, Conclusions of Law and Recommended Order are made: FINDINGS OF FACT 1. The Respondent is the holder of a Class C-39R (No. 249198) License issued by the Registrar of Contractors. 2. This matter originally came on for hearing on December 19, 2011, at which date the matter was set for further hearing on February 3, 2012, to allow the Respondent sufficient time to produce records that it had fully paid the material supplier in this matter. No testimony or evidence was presented on December 19, 2011. 3. Undisputed credible testimony and evidence established that the Complainant retained the Respondent to perform agreed upon HVAC work on a residence located at 10714 E. Addy Way, Scottsdale, Arizona where the Complainant was acting in the capacity of a general contractor. 4. Undisputed credible testimony and evidence established that the Complainant paid the Respondent in full for its labor and materials utilized on the construction project at issue. 5. Undisputed credible testimony and evidence established that after the construction project was completed, the Respondent’s HVAC material supplier, Baker Distributing Company dba ACH Supply, filed a claim against the Complainant’s bond asserting that the Claimant had furnished HVAC materials to the Respondent in the value of $6,093.21 which were installed in the residence at issue and for which the Respondent had failed to pay the Claimant. 6. The Complainant then contacted the Respondent and requested proof of payment for the claim for the HVAC materials at issue. 7. Undisputed credible testimony and evidence established that the Complainant gave the Respondent repeated opportunities and an extended period of time to produce proof of payment and that the Respondent failed to produce any credible evidence that it had paid the claim at issue. 8. Undisputed credible testimony and evidence established that the Respondent’s actions over a prolonged period of time are not indicative of a good faith desire to resolve this matter by paying its material suppler or producing credible proof that the Respondent had paid the claim at issue. On the contrary, undisputed credible testimony and evidence established that the Respondent failed to pay the material supplier for the HVAC materials utilized on the residence at issue and that the Respondent’s claim to have paid the material supplier was simply a ruse to prolong the matter at issue. 9. Undisputed credible testimony and evidence established that the Respondent failed to pay its material supplier the sum of $6,093.21 for the HVAC equipment utilized on the residence at issue and that as a direct consequence thereof a claim has been filed against the Complainant’s bond by the Respondent’s material supplier. 10. Undisputed credible testimony and evidence established that the Complainant’s bonding company has canceled the Complainant’s bond as a direct result of the matter at issue. 11. Undisputed credible testimony and evidence established that the Complainant must now pay the Respondent’s material supplier the sum of $6,093.21 for HVAC equipment that the Complainant has already paid the Respondent for. 12. The Respondent’s failure to pay the aforementioned sum of $6,093.21 to its material supplier for the construction project at issue is not found to be in good faith and accordingly, under all of the facts and circumstances presented herein the Respondent’s conduct is found to constitute a violation of the charged provisions of A.R.S. § 32-1154 (A) (11) (failure to pay monies in excess of seven hundred fifty dollars when due for materials rendered). 13. Notice is taken of the Respondent’s prior license record with the Registrar of Contractors. CONCLUSIONS OF LAW 1. The Complainant has the burden of demonstrating by a preponderance of the evidence that the Respondent violated the charged sections of the state’s contracting laws. See Culpepper v. State of Arizona, 187 Ariz. 431, 437-38, 930 P.2d 508 (Ariz. App. 1996). 2. Proof by “preponderance of the evidence” means that it is sufficient to persuade the finder of fact that the proposition is “more likely true than not.” In re Arnold and Baker Farms, 177 B.R. 648, 654 (9th Cir. BAP (Ariz.) 1994). It “is evidence which is of greater weight or more convincing than the evidence which is offered in opposition to it; that is, evidence which as a whole shows that the fact sought to be proved is more probable than not.” Black’s Law Dictionary 1182 (rev. 6th ed. 1990). 3. Undisputed credible testimony and evidence supported findings which establish that the Respondent violated the charged provisions of A.R.S. § 32-1154 (A) (11) (failure 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). RECOMMENDED ORDER In view of the foregoing, it is recommended that the Respondent’s License be revoked on the effective date of the Registrar’s Order unless the Registrar receives and accepts written proof that the Respondent has paid the sum of $6,093.21 to the Complainant. It is further recommended that if Respondent pays the above described sum of money, on or before the effective date of the Registrar’s Order, then the aforementioned license revocation shall not take place and instead, the Respondent’s License shall be placed be placed on disciplinary probation for a period of sixty (60) days. In the event of certification of this 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 the certification. Done this day, February 3, 2012.

/s/ M. Douglas 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