ALJDEC decisions subject to certification as final

2011A-5631-ROC · Registrar of Contractors · 2012-05-11

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: March 5, 2012 and April 23, 2012

APPEARANCES: Complainant was represented on both dates by Managing Member Robert Corrigan; on March 5, 2012, Respondent was represented by Michael G. Tafoya, Esq., accompanied by Managing Member and Qualifying Party William McCleve; on April 23, 2012, no one appeared on behalf of Respondent.

WITNESSES: Robert Corrigan

ADMINISTRATIVE LAW JUDGE: Eric A. Bryant _____________________________________________________________________

Complainant Empire 1 Builders, LLC (“Empire 1”) brings this action to force Respondent J M Homes, LLC (“JMH”) to pay a remaining balance for subcontracting services provided to JMH as part of JMH’s contracting business. As noted above, the parties met for hearing on March 5, 2012. However, because of another complaint between the parties that was pending at the time (2012-0024), the parties agreed to postpone the hearing to a later date.[1] No evidence was taken on March 5, 2012. On April 23, 2012, Empire 1’s representative Robert Corrigan reported that the other complaint was in the process of being closed and he wanted to move forward to hearing in the present matter. JMH did not appear on April 23, 2012, and this failure to appear is deemed to be voluntary; therefore, Empire 1’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 Robert Corrigan (“Corrigan”). 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 JMH be ordered to pay $12,938.29 to Empire 1 or have its licensed suspended. FINDINGS OF FACT 1. JMH is the holder of License No. B.176412-R, a general residential contracting license issued by the ROC. The license authorizes JMH to operate as a general contractor for residential projects. William McCleve is the Qualifying Party. 2. Empire 1 is a subcontractor (License No. KB-2.159657-D) which JMH hired for various residential projects JMH was building in the first half of the year 2011. JMH paid some of its outstanding debt to Empire 1, but has not paid a remaining balance due since August 2011. 3. At hearing, Corrigan provided testimony and documentation showing that several invoices for Empire 1’s work have not been paid, including Invoices 106,[2] 113,[3] and 123.[4] Master Invoice 128 shows a remaining balance of $12,938.29 due to Empire 1.[5] 4. JMH did not appear at the hearing to dispute Empire 1’s evidence. CONCLUSIONS OF LAW 1. The burden of proof at an administrative hearing is generally upon a complainant.[6] Further, the standard of proof at hearing is by preponderance of the evidence.[7] Therefore, Empire 1 bears the burden of showing, by a preponderance of the evidence, that JMH has violated the statutes cited in the Citation and Complaint.[8] Empire 1 has met that burden. 2. The Citation and Complaint cites the “no pay” provision found in Arizona Revised Statutes § 32-1154(A)(11) that 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 JMH has violated that provision. 3. JMH has failed to pay Empire 1 $12,938.29 that is due and owing for services and materials in connection with JMH’s work as a contractor. 4. Administrative notice is taken of JMH’s prior license record as reflected on the ROC’s public website on May 11, 2012. That prior record shows that Respondent has held the license since June 2002 and has never been disciplined. This is an excellent record. 5. JMH should be given an opportunity to pay the remaining balance, and if JMH fails to do so, its license should be suspended until it does. RECOMMENDED ORDER IT IS RECOMMENDED that License No. B.176412-R held by Respondent J M Homes, LLC, be suspended on the effective date of the Registrar’s Order until the Registrar receives written proof of payment in certified funds to Complainant Empire 1 Builders, LLC, of $12,938.29, and the Registrar accepts such written proof. IT IS FURTHER RECOMMENDED that if Respondent J M Homes, LLC, provides such written proof on or before the effective date of the Registrar’s Order, the license suspension shall not take place and case 2011-5631 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, May 11, 2012.

/s/ Eric A. Bryant Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors ----------------------- [1] See this tribunal’s Order Setting Date for Further Hearing issued March 7, 2012. [2] Exhibit C-4. [3] Exhibit C-6. [4] Exhibit C-7. [5] Exhibit C-9. [6] Utah Construction Company v. Berg et al, 68 Ariz. 285, 205 P.2d 367 (1949). [7] Smith v. Arizona Dept. of Transportation, 146 Ariz. 430, 706 P.2d 756 (App. 1985). [8] Culpepper v. State, 187 Ariz. 431, 437, 930 P.2d 508, 514 (Ct. App. 1996).

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