ALJDEC decisions subject to certification as final

2011A-5195-ROC · Registrar of Contractors · 2012-12-21

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: December 5, 2012

APPEARANCES: Complainant was represented by Controller Bonnie Horton; no one appeared on behalf of Respondent.

ADMINISTRATIVE LAW JUDGE: Eric A. Bryant _____________________________________________________________________

Complainant brings this action to force Respondent to pay a remaining balance for construction materials provided to Respondent as part of Respondent’s contracting business. As noted above, Respondent did not appear at the hearing; therefore, Complainant’s evidence is uncontested. This tribunal entered the complaint file received from the Registrar of Contractors (“ROC” or “Registrar”) into the record and took brief testimony from Bonnie Horton. Based upon the entire record, the Administrative Law Judge makes the following Findings of Fact, Conclusions of Law, and Recommended Order, finding violation of the law and recommending that Respondent be ordered to pay $11,217.26 to Complainant or have its licensed revoked. FINDINGS OF FACT 1. Respondent is the holder of license A-15.210500-C, an engineering seal coating contractor’s license issued by the ROC. Administrative notice is hereby taken of Respondent’s license record as reflected on the ROC’s public website on December 21, 2012. According to that information, Respondent’s license expired on September 1, 2012. 2. Complainant is a material supplier from whom Respondent purchased materials for use in Respondent’s construction business throughout calendar year 2010. Complainant’s witness, Bonnie Horton, briefly testified about the amounts past due from Respondent, referring to seven individual invoices provided in Exhibit A. 3. Complainant has provided documentation showing that the outstanding amount due for materials is $11,217.26. 4. Respondent did not appear at the hearing to dispute Complainant’s evidence. CONCLUSIONS OF LAW 1. The burden of proof at an administrative hearing is generally upon a complainant.[1] Further, the standard of proof at hearing is by preponderance of the evidence.[2] Therefore, Complainant bears the burden of showing, by a preponderance of the evidence, that Respondent has violated the statutes cited in the Citation and Complaint.[3] Complainant has met that burden. 2. The Citation and Complaint cites the “no pay” provision found in A.R.S. § 32-1154(A)(11), which prohibits the failure of a licensee to pay monies in excess of $750 “when due for materials or services” when the licensee has the capacity to pay or when the licensee has been paid for the project. The evidence is sufficient to show that Respondent has violated that provision. 3. Respondent has failed to pay Complainant $11,217.26 that is due for materials in connection with Respondent’s work as a contractor. 4. Respondent’s license is expired. Pursuant to A.R.S. § 32- 1154(C), the expiration of a license does not deprive the ROC or this tribunal of jurisdiction and does not render the ROC powerless to discipline the license further. 5. Respondent should be given an opportunity to pay the remaining balance and if Respondent fails to do so, his license should be revoked. RECOMMENDED ORDER IT IS RECOMMENDED that License No: A-15.210500-C held by Respondent Manuel Eugene Clark dba Southwest Asphalt Sealing and Repair be revoked on the effective date of the Registrar’s Order unless the Registrar receives written proof of payment to Complainant of the sum of $11,217.26 in certified funds, and the Registrar accepts such written proof. IT IS FURTHER RECOMMENDED that if Respondent provides such written proof, on or before the effective date of the Registrar’s Order, the license revocation shall not take place and Case No. 2011-5195 shall be closed.

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, December 21, 2012.

/s/ Eric A. Bryant Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors ----------------------- [1] Utah Construction Company v. Berg et al, 68 Ariz. 285, 205 P.2d 367 (1949). [2] Smith v. Arizona Dept. of Transportation, 146 Ariz. 430, 706 P.2d 756 (App. 1985). [3] Culpepper v. State, 187 Ariz. 431, 437, 930 P.2d 508, 514 (Ct. App. 1996).

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