ALJDEC decisions subject to certification as final

2011A-5106-ROC-res · Registrar of Contractors · 2013-02-12

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: January 24, 2013 APPEARANCES: Complainant Arizona High Lift LLC was represented by its Managing Member, Doug Click. Respondent Lasaka Painting Inc did not appear. ADMINISTRATIVE LAW JUDGE: Tammy L. Eigenheer _____________________________________________________________________ FINDINGS OF FACT 1. Lasaka Painting Inc (Respondent) is the holder of License No. K- 34.227550-D issued by the Registrar of Contractors (the Registrar). Respondent’s current address of record on the Registrar’s public website is PO Box 15158, Scottsdale, AZ 85267-5158. 2. Complainant rented a piece of equipment to Respondent and was given a credit card to pay for the rental. The credit card was later declined for payment. The original rental charge was approximately $1,700.00. 3. When Respondent failed to comply with Complainant’s repeated requests for the outstanding balance, on September 6, 2011, Complainant filed a formal Complaint against Respondent with the Registrar indicating Respondent still owed $1,567.00. 4. After Respondent did not resolve Complainant’s Complaint, the Registrar issued a Citation and Complaint against Respondent charging possible violations of A.R.S. § 32-1154(A)(11) and A.R.S. § 32- 1154(A)(18). 5. On March 22, 2012, the parties appeared for a hearing on the matter. The parties were able to reach a settlement wherein Complainant agreed to withdraw the Complaint in return for Respondent’s promise to pay Complainant $200.00 per month beginning March 2012 for six months for a total of $1,200.00. 6. On March 22, 2012, Respondent paid Complainant $200.00. Respondent made another $200.00 payment approximately 60 days after it was due. 7. Respondent provided Complainant a check for $200.00 for the third payment. When Complainant attempted to deposit the check, it discovered Respondent had put a “stop payment” on the check. 8. On August 7, 2012, Complainant submitted a letter to the Registrar requesting the case be reopened due to Respondent’s failure to comply with the agreement. 9. On August 21, 2012, the Registrar mailed a copy of Complainant’s letter to Respondent at its address of record and indicated that Respondent had “10 days to file any written response or objections” to the letter. 10. Respondent did not file a response or objections to the letter. 11. The Registrar referred the matter to the Office of Administrative Hearings (OAH), an independent state agency, for an evidentiary hearing. The Order Reopening Complaint and Setting Administrative Hearing provided, in pertinent part, as follows:

On or about August 7, 2012, Complainant submitted written correspondence in this matter with the Registrar providing that Respondent “made two payments totaling $400.00 and put a stop payment on the third payment check number 5040. There is still an $800.00 balance due.” Complainant further provided that Complainant “would like to reopen the complaint and proceed with what ever (sic) recourses your office can provide.” On August 10, 2012, not having an opportunity to review the August 7th submission, the Registrar issued an Order of Closing in this matter providing that the matter should be closed as settled in accordance with the assigned Administrative Law Judge’s March 22, 2012 Recommendation and the parties’ terms of settlement that were presented before the Administrative Law Judge in this matter. On August 21, 2012, the Registrar sent Respondent a copy of Complainant’s Request to Reopen, providing Respondent with an opportunity to file a Response thereto. As of the date of this Order, no Response has been received. Upon review and consideration, and with good cause appearing, IT IS ORDERED that Complainant’s Request to Reopen be GRANTED. IT IS FURTHER ORDERED that an Administrative Hearing be scheduled in the expedited course of docketing in the Phoenix area. At the Administrative Hearing, the parties may offer evidence and testimony as to whether or not Respondent engaged in conduct in violation of A.R.S. § 32-1154(A)(11) and/or (18) as set forth in the Citation and Complaint and/or breached the terms of the parties’ Settlement Agreement. If the assigned Administrative Law Judge determines that Respondent violated A.R.S. § 32-1154(A)(11) and/or (18) and recommends that discipline is to be imposed upon Respondent’s K-34.227550-D License, and the Registrar adopts such recommendation, the discipline may be imposed immediately, based upon a finding that in addition to any violation of contracting law that was committed by Respondent, Respondent further breached the parties’ Settlement Agreement.

12. The Registrar issued a Notice of Hearing setting a hearing at 8:00 a.m. on January 24, 2013. The Registrar mailed a copy of the Notice of Hearing to Respondent at its address of record. The Registrar’s Notice of Hearing advised the parties that failure to attend the hearing would likely result in an adverse ruling against them. 13. A hearing was held on January 24, 2013. Doug Click, Complainant’s Managing Member, testified. 14. 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 20 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. 15. Mr. Click presented testimony to establish that Respondent owed Complainant $1,167.00 in principal for the rental of a piece of equipment. 16. Administrative notice is taken of Respondent’s prior License record as reflected on the Registrar’s public website on February 1, 2013. Such prior License record reflects that Respondent’s License was suspended for non-renewal on January 1, 2013. CONCLUSIONS OF LAW This matter lies within the Registrar’s jurisdiction. See A.R.S. §§ 32- 1151 to 32-1169. Respondent’s administratively suspended license does not deprive Complainant of its right to prosecute its complaint or prevent the Registrar from determining the merits of the complaint. See A.R.S. § 32- 1154(D). 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. See A.R.S. §§ 41-1092.04; 41-1092.05(D). Complainant bears the burden of proof to establish Respondent’s statutory violations by a preponderance of the evidence. 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). “A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.” Morris K. Udall, Arizona Law of Evidence § 5 (1960). 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.

Complainant established that Complainant provided a piece of equipment to Respondent for rental and that Respondent had an unpaid balance of $1,167.00.[1] Therefore, Complainant established that Respondent violated A.R.S. § 32- 1154(A)(11) by failing to pay Complainant $1,167.00 for materials that Complainant provided to Respondent in connection with its contracting business. A.R.S. § 32-1154(A)(18) includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license “[c]ontracting or offering to contract or submitting a bid while the license is under suspension or while the license is on inactive status.” No evidence was presented regarding this alleged violation. Therefore, Complainant failed to establish that Respondent violated A.R.S. § 32- 1154(A)(18). Based upon Respondent’s violation of the provisions of A.R.S. § 32- 1154(A)(11), grounds exist to impose discipline against Respondent’s license. RECOMMENDED ORDER Based on the foregoing, it is recommended that the Registrar immediately revoke License No. K-34.227550-D previously issued to Respondent Lasaka Painting Inc. It is further recommended that if the Registrar receives from Respondent written proof that is satisfactory to the Registrar that Respondent has paid $1,167.00 to Complainant in certified funds, the Registrar not revoke Respondent’s license but, instead, close the complaint in Case No. 2011-5106. 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, February 12, 2013.

/s/ Tammy L. Eigenheer Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors ----------------------- [1] The original Complaint indicated an unpaid balance of $1,567.00. Respondent paid $400.00 toward that debt, leaving a balance of $1,167.00. While Complainant previously agreed to accept $1,200.00 as a settlement, Complainant is not bound to accept less than what is owed to it.

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