ALJDEC decisions subject to certification as final

2011A-5344-ROC · Registrar of Contractors · 2012-07-19

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: July 6, 2012, at 8:15 a.m. APPEARANCES: Complainant American Concrete Sales, Inc. appeared through Edward Bloomfield, its president; Respondent Be Right Concrete LLC did not appear. ADMINISTRATIVE LAW JUDGE: Diane Mihalsky _____________________________________________________________________

FINDINGS OF FACT 1. The Arizona Registrar of Contractors (“the Registrar”) issued License No. K-9.262444-D to Be Right Concrete LLC (“Respondent”). Respondent’s current address of record on the Registrar’s public website is 16950 East Roadrunner Road, Spring Valley, Arizona 86333- 4257. 2. American Concrete Sales, Inc. (“Complainant”) is a materialman that is in the business of selling concrete supplies to contractors like Respondent. The Registrar received a complaint from Complainant against Respondent alleging that it owed Complainant $760.54 on a contract amount of $623.92 for concrete supplies that Complainant had furnished for a project at 6530 Harris Drive in Prescott, Arizona. On the second page of the complaint, Complainant requested that the Registrar require Respondent to pay the outstanding balance and to “return concrete saw [or] pay $750.00 . . . .” 3. After Respondent did not resolve Complainant’s complaint, 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 its address of record. 4. Respondent filed a timely written answer to the Citation and Complaint, denying any statutory violation and affirmatively alleging that Respondent had sold a tractor to Complainant and that in lieu of making payments, Complainant had agreed to furnish concrete supplies to Respondent at no charge. Respondent’s written answer did not mention the concrete saw. 5. Respondent did not provide an address that was different from its address of record on its written answer. 6. The Registrar referred the matter to the Office of Administrative Hearings (“the OAH”), an independent state agency, for an evidentiary hearing. 7. The Registrar issued a Notice of Hearing setting a videoconference hearing on July 6, 2012, at 8:15 a.m. at the Registrar’s office in Flagstaff, Arizona. The Registrar mailed a copy of the Notice of Hearing to Respondent at its address of record. 8. The Registrar’s Notice of Hearing advised the parties that failure to attend the hearing would likely result in an adverse ruling against them. 9. A hearing was held on July 6, 2012. Edward Bloomfield, Complainant’s president, submitted twelve exhibits and testified. 10. 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 fifteen 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. 11. Mr. Bloomfield testified and submitted purchase orders, invoices, and a statement to establish that Respondent owed Complainant $623.92 in principal for concrete supplies that Complainant had furnished to Respondent on credit.[1] 12. In addition, Mr. Bloomfield testified that he formerly was friends with Respondent’s qualifying party and member, Paul Davis. Mr. Bloomfield testified that he loaned Respondent a concrete saw that was worth $750.00 in June or July of 2010, and that Mr. Davis has not returned the saw to Complainant. Mr. Bloomfield testified that concrete saws depreciate quickly if they are subject to abuse. 13. Administrative notice is taken of Respondent’s prior License record as reflected on the Registrar’s public website on July 19, 2012. Such prior License record reflects that Respondent’s License was suspended by operation of law since February 7, 2012, for non-renewal and since March 2, 2012, for lack of bond. CONCLUSIONS OF LAW The suspended status of Respondent’s license does not deprive Complainant of its right to prosecute its complaint against Respondent or prevent the Registrar from determining the merits of Complainant’s complaint.[2] This matter lies within the Registrar’s jurisdiction.[3] 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.[4] Complainant bears the burden of proof to establish Respondent’s statutory violation by a preponderance of the evidence.[5] Respondent bears the burden to establish affirmative defenses by the same evidentiary standard.[6] “A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.”[7] Complainant established that Respondent purchased $623.92 worth of concrete supplies from Complainant and that Respondent has not paid Complainant anything for the supplies. Complainant also established that Respondent took possession of Complainant’s concrete saw, that the saw was worth $750.00, that Respondent has converted the saw to its own use, and that Respondent has neither returned the saw nor paid Complainant anything for it. By failing to appear or to offer any evidence at the duly noticed hearing, Respondent failed to establish the affirmative defense alleged in its written answer. Therefore, Complainant established that Respondent violated A.R.S. § 32- 1154(A)(11)[8] by failing to pay Complainant $1,373.92[9] for materials and equipment that Complainant furnished to Respondent to use in its contracting business. 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 revoke License No. K-9.262444-D previously issued to Respondent Be Right Concrete LLC. 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 $1,373.92 to Complainant American Concrete Sales, Inc. in certified funds, the Registrar not revoke Respondent’s license but, instead, close the complaint in Case No. 2011-5344. 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, July 19, 2012.

/s/ Diane Mihalsky Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors ----------------------- [1] The $760.54 that Complainant alleged was due on its complaint included finance charges. [2] See A.R.S. § 32-1154(C). That statute provides that “[t]he expiration, cancellation, suspension or revocation of a license . . . shall not deprive the registrar of jurisdiction to proceed with any investigation of or action or disciplinary proceeding against such license, or to render a decision suspending or revoking such a license . . . .” [3] See A.R.S. §§ 32-1151 to 32-1169. [4] See A.R.S. §§ 41-1092.04; 41-1092.05(D). [5] 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). [6] See A.A.C. R2-19-119(B)(2). [7] Morris K. Udall, Arizona Law of Evidence § 5 (1960). [8] 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.” [9] $623.92 + $750.00 = $1,373.92

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