ALJDEC decisions subject to certification as final

2011A-4697-ROC · Registrar of Contractors · 2012-02-10

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: February 10, 2012, at 8:00 a.m. APPEARANCES: The Complainant appeared through its attorney, John G. Ryan. 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 L-11 (No. 160438) License issued by the Registrar of Contractors. 2. Undisputed credible testimony and evidence established that the Complaint and the Respondent entered into a written Subcontract Agreement on May 7, 2010, for the performance of construction work on the Predator Beddown FOC project located at Davis Monthan Air Force Base in Tucson, Arizona. 3. There was no dispute that pursuant to the terms of the written Subcontract Agreement, the Respondent was to provide all labor, material, equipment and adequate supervision for the install of a telecommunications/data/public address system in accordance with all plans, specifications, and all applicable code requirements. 4. There was no dispute that the Subcontract price was $136,000. 5. Undisputed credible testimony and evidence established that that the Complainant paid the Respondent the total sum of $125,730.00 through March 31, 2011, through two separate pay applications by the Respondent. 6. Undisputed credible testimony and evidence established that the Respondent provided the Complainant with an unconditional waiver and release for the progress payments dated May 20, 2011, wherein the Respondent warranted that it had paid or would use the proceeds to pay all materialmen for the commercial construction project at issue. 7. Undisputed credible testimony and evidence established that one of the Respondent’s material suppliers for the construction project, Communications Supply Corporation, filed a claim against the Complainant’s surety bond for the sum of $147,341.16 for materials supplied to the Respondent for the construction project at issue. 8. Undisputed credible testimony and evidence established that the Respondent had warranted that it had utilized the money paid to it by the Complainant to pay the Respondent’s material suppliers, when in fact, the Respondent had utilized had failed to pay its material suppliers for the construction project at issue. 9. Undisputed credible testimony and evidence established that the Complainant will be financially responsible for reimbursing its surety bonding company for the $147,341.16 claimed by the Respondent’s material supplier. 10. The Respondent‘s failure to pay the aforementioned sum to its material supplier, despite its written representations in the signed waiver and release provided to the Complainant, is not found to be in good faith and accordingly, under all of the facts and circumstances presented herein, 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 or serviced rendered in connection with the licensee’s operations as a contractor). 11. Undisputed credible testimony and evidence established that the Respondent failed to properly display its license number proceeded by the acronym “ROC,” as required by applicable statute. 12. Undisputed credible testimony and evidence established that the Respondent operated under the name of Millennium 3 Technologies, when the name on the Respondent’s license reads M 3 T LLC, in violation of applicable statute. 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), A.R.S. § 32-1154 (A) (13), namely, A.R.S. § 32-1124 (B) (display of license number), and A.R.S. § 32-1154 (A) (15) (acting in the capacity of a contractor in a name other than as set forth upon the license). RECOMMENDED ORDER In view of the foregoing, it is recommended, commencing on the effective date of the Registrar of Contractors’ Order, that the Respondent’s License be suspended until the Registrar of Contractors receives and accepts written proof that Respondent has paid the sum of $147,341.16 to the Complainant and provided satisfactory written proof to the Registrar that the Respondent is in full compliance with the provisions of A.R.S. § 32-1124 (B) and A.R.S. § 32-1154 (A) (15). It is further recommended that if the Respondent pays the above described sum of money ,on or before the effective date of the Registrar’s Order, and provides acceptable written proof that it is within full compliance with the provisions of A.R.S. § 32-1124 (B) and A.R.S. § 32-1154 (A) (15), then the aforementioned indefinite license suspension shall not take place and this matter shall be closed. 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 10, 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