ALJDEC decisions subject to certification as final

2011A-4529-ROC · Registrar of Contractors · 2012-01-24

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: January 13, 2012 APPEARANCES: C and M Homes, L.L.C. was represented by its authorized representative, Terry Diedrick. Katana Contracting, L.L.C. did not appear. ADMINISTRATIVE LAW JUDGE: Brian B. 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. C and M Homes, L.L.C. (“Complainant”) is the holder of License No. 247505 issued by the Registrar of Contractors (“Registrar”). 2. Katana Contracting, L.L.C. (“Respondent”) is the holder of License No. 206031 issued by the Registrar. 3. On August 4, 2011, Complainant filed a written Complaint with the Registrar alleging nonpayment by Respondent in the amount of $1,360.00 for work performed by Complainant on the Southwest Gold & Silver project located at 7974 W. Bell Road, No. C8, Glendale, Arizona. The Registrar designated the Complaint as Case No. 2011-4529. 4. On October 21, 2011, the Registrar issued a Citation and Complaint in Case No. 2011-4529 charging Respondent with violating the provisions of A.R.S. § 32-1154(A) (11). 5. On October 28, 2011, Respondent filed its Written Answer to Citation and Complaint with the Registrar. Respondent stated that it had not received payment from the project owner for Complainant’s work sufficient to pay Complainant. 6. The Registrar forwarded Case No. 2011-4529 to the Office of Administrative Hearings, an independent agency, for an evidentiary hearing. 7. The Registrar issued a Notice of Hearing that advised the parties of the time, date, and location of the formal hearing. The Registrar sent the Notice of Hearing to the parties and their counsel at their addresses of record with the Registrar. 8. The commencement of the hearing was delayed 15 minutes to allow for the late arrival of Respondent’s authorized representative. After the delay, the Administrative Law Judge conducted the hearing in Respondent’s absence. 9. On August 1, 2011, Respondent executed an Unconditional Waiver and Release on Final Payment for payment of $27,909.00 from the project owner, Southwest Gold & Silver. See Exhibit 1. The release covered the final payment to Respondent. 10. Complainant’s authorized representative, Terry Diedrick, testified that the project owner has no issues with Complainant’s workmanship. 11. The evidence of record established that Respondent received payment in full from the project owner and, therefore, had the ability to pay Complainant for its work from the funds received from the project owner. 12. A review of the Registrar’s official website reveals that Respondent’s contracting license has been suspended by operation of law for lack of bond since September 12, 2011. The Registrar’s website reflects one open complaint and one resolved/settled/withdrawn complaint against Respondent’s contracting license. / / / / / / / / /

CONCLUSIONS OF LAW 1. Pursuant to A.R.S. § 32-1154(C), the suspension of Respondent’s contracting license does not deprive the Registrar of the authority to impose discipline on that license for proven statutory violations in this matter. 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. The evidence of record established that Respondent failed to pay Complainant the sum of $1,360.00 for work performed on the Southwest Gold & Silver project, in violation of A.R.S. § 32-1154(A) (11) as charged in the Citation and Complaint issued by the Registrar. There was credible evidence that Respondent was fully paid by the project owner for Complainant’s scope of work. RECOMMENDED ORDER Respondent’s License No. 206031 shall be revoked on the effective date of the Order entered in Case No. 2011-4529. If Respondent provides the Registrar with written proof that Respondent has paid Complainant the sum of $1,360.00 by certified funds or cashier’s check on or before the effective date of the Order entered in this matter, and the Registrar approves proof of such payment, then the above-provided license revocation shall not take place, but instead Respondent’s License No. 206031 shall be placed on suspension for a period of five (5) days followed immediately by a period of disciplinary probation for thirty (30) days. This alternative penalty shall commence, if at all, on the effective date of the Order entered in Case No. 2011-4529. 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 forty (40) days from the date of that certification. Done this day, January 24, 2012.

/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