ALJDEC decisions subject to certification as final

2011A-5068-ROC · Registrar of Contractors · 2012-03-01

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: February 10, 2012, at 8:00 a.m. APPEARANCES: Complainant Inca Roofing, Inc. appeared through Salvador Flores, its qualifying party and officer; Respondent Success Roofing and Contracting, L.L.C. dba Allied Forces Roofing did not appear. ADMINISTRATIVE LAW JUDGE: Diane Mihalsky _____________________________________________________________________

FINDINGS OF FACT In May 2001, the Arizona Registrar of Contractors (“the Registrar”) issued License No. K-42.234529-D for dual roofing to Inca Roofing, Inc. (“Complainant”). In March 2011, the Registrar issued License No. C-42.270871-R for residential roofing to Success Roofing and Contracting, L.L.C. doing business as (“dba”) Allied Forces Roofing (“Respondent”). Respondent’s current address of record on the Registrar’s public website is 7350 West 1st Avenue, Lakewood, Colorado 80226-2004. Respondent’s qualifying party is Patrick Xavior Sweeney. On September 2, 2011, the Registrar received a complaint from Complainant against Respondent alleging that it owed monies to Complainant for a roofing job that Complainant performed pursuant to Respondent’s purchase order at 6848 East Aster Drive, Scottsdale, Arizona. Complainant attached to its complaint a copy of Respondent’s Purchase Order # AFMIC-[number redacted], dated June 29, 2011, for the Messenger residence at 6848 Aster in Scottsdale (“the Messenger project”) that was signed by Thomas Simpson, General Manager of Respondent’s Arizona office (“the June 29, 2011 purchase order”). The estimated cost of the job on the June 29, 2011 purchase order was $2.10 per square foot for approximately 2,900 square feet “plus reasonable and customary charges,” not to exceed $10,000.00. Respondent’s address on the June 29, 2011 purchase order was 2700 Hayden Road, Scottsdale, Arizona 85032. On November 11, 2011, the Registrar issued a Citation and Complaint against Respondent, charging a violation of A.R.S. § 32-1154(A)(11). The Registrar mailed a copy of the Citation and Complaint to Respondent at the Hayden Road address. On November 22, 2011, the Registrar received a written answer to the Citation and Complaint from Mr. Sweeney, on Respondent’s behalf, denying any statutory violation. Respondent denied that it had subcontracted the Messenger project to Complainant and affirmatively alleged that Robert Messenger hired Complainant directly after he was dissatisfied with Respondent’s crew’s work and had refused to pay Respondent. Respondent on its written answer provided its current address of record. The Registrar referred the matter to the Office of Administrative Hearings (“the OAH”), an independent agency, for an evidentiary hearing. On December 22, 2011, the Registrar issued a Notice of Hearing setting a hearing on February 10, 2012, at 8:00 a.m. at the OAH. The Registrar mailed a copy of the Notice of Hearing to Respondent at its current address of record in Lakewood, Colorado. The Registrar’s Notice of Hearing advised the parties that failure to attend the hearing would likely result in an adverse ruling against them. A hearing was held on February 10, 2012. Salvador Flores, Complainant’s qualifying party, submitted two exhibits and testified. Respondent did not request to appear telephonically at the hearing or to continue the hearing. Although the start of the duly noticed hearing was delayed thirty-five minutes to allow Respondent additional travel time, Respondent did not appear through an authorized member, employee, or attorney, and did not contact the OAH to request that the start of the hearing be further delayed. Consequently, Respondent did not present any evidence to defend its license. Mr. Flores testified that Mr. Simpson coordinated Respondent’s work in Arizona. After Respondent’s crew did poor work on the Messenger project, Respondent issued the June 29, 2011 purchase order for Complainant to partially tear off the roof, perform repairs, and complete construction of a portion of the roof, including rebuilding crickets and replacing a deck that was rotten, at a cost of $6,300.00. Mr. Flores testified that at Mr. Simpson’s request, Complainant also completed a second phase that consisted of the roofs over a balcony and shed, at an additional cost of $1,400.00. Mr. Flores testified that under the terms of the June 29, 2011 purchase order, Respondent owed Complainant a total of $7,700.00 for its construction and repair of the roofs at the Messenger project. In addition to the June 29, 2011 purchase order, Mr. Flores submitted an Unconditional Waiver of Lien and Release that Mr. Simpson signed on October 12, 2011, on Respondent’s behalf, acknowledging that Respondent had been paid in full for the Messenger project at 6848 East Aster Drive. Mr. Flores testified that Mr. Messenger said that he paid Respondent a total of $18,000.00 for the project. The Registrar’s public website shows that Respondent’s license is current and in good standing. Two complaints are pending against the license. CONCLUSIONS OF LAW 1. This matter lies within the Registrar’s jurisdiction.[1] 2. The Notice of Hearing that the Registrar mailed to Respondent at its address of record was reasonable. Respondent is deemed to have received notice of the hearing.[2] 3. Complainant bears the burden of proof to establish Respondent’s statutory violation by a preponderance of the evidence.[3] Respondent bears the burden to establish affirmative defenses by the same evidentiary standard.[4] 4. “A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.”[5] 5. A.R.S. § 32-1154(A)(11) includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, “[f]ailure by a licensee . . . 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 when the licensee has the capacity to pay or, if the licensee lacks the capacity to pay, when the licensee has received sufficient monies as payment for the particular construction work project or operation for which the services or materials were rendered or purchased.” A licensee’s lack of capacity to pay and nonpayment by the owner or general contractor on a project are affirmative defenses that the licensee bears the burden to establish. 6. Complainant established that Respondent subcontracted a portion of the Messenger project to Complainant, that Complainant fully performed the subcontract, and that Respondent owed Complainant a total of $7,700.00 pursuant to the terms in the June 29, 2011 purchase order. 7. By failing to appear or to offer any evidence at the duly noticed hearing, Respondent failed to establish that it lacks the capacity to pay and that it has not received payment for the Messenger project. 8. Therefore, Complainant established that Respondent violated A.R.S. § 32-1154(A)(11) by failing to pay Complainant $7,700.00 for work it performed on the Messenger project pursuant to its subcontract with Respondent. RECOMMENDED ORDER Based on the foregoing, it is recommended that on the effective date of the Registrar’s final order in this matter, the Registrar suspend Respondent Success Roofing and Contracting, L.L.C. dba Allied Forces Roofing’s License No. C-42.270871-R until Respondent pays $7,700.00 to Complainant Inca Roofing, Inc. It is further recommended that if on or before the effective date of the order, the Registrar receives from Respondent written proof that is satisfactory to the Registrar that Respondent has paid $7,700.00 to Complainant by cashier’s or certified check, the Registrar not suspend Respondent’s license but, instead, close the complaint in Case No. 2011- 5068. 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, March 1, 2012.

/s/ Diane Mihalsky Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors ----------------------- [1] See 32-1101 et seq. [2] See A.R.S. §§ 41-1092.04; 41-1092.05(D). [3] See A.R.S. § 41-1092.07(G)(2); A.A.C. R2-19-119(A) and (B)(1); see also Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952). [4] See A.A.C. R2-19-119(B)(2). [5] Morris K. Udall, Arizona Law of Evidence § 5 (1960).

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