ALJDEC decisions subject to certification as final

2011A-6188-ROC-res · Registrar of Contractors · 2012-12-03

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: November 15, 2012, at 1:00 p.m. APPEARANCES: Complainant Responsible Business Service appeared through Charlene Reed, its owner; Respondent Moreno Welding Inc. failed to appear. ADMINISTRATIVE LAW JUDGE: Diane Mihalsky _____________________________________________________________________

FINDINGS OF FACT 1. The Arizona Registrar of Contractors (“the Registrar”) issued License No. A-11.094620-C to Moreno Welding Inc. (“Respondent”). Respondent’s current address of record is P.O. Box 8096, Phoenix, Arizona 85066- 8096. 2. Responsible Business Service (“Complainant”) provides consulting and other professional services to businesses such as Respondent’s contracting business. Complainant filed a Complaint with the Registrar alleging that Respondent owed Complainant $8,675.00 for professional services. 3. After Respondent did not resolve Complainant’s Complaint, the Registrar issued a Citation and Complaint charging Respondent with a possible violation of A.R.S. § 32-1154(A)(11). After Respondent filed a timely written answer to the Citation and Complaint, the Registrar referred the matter to the Office of Administrative Hearings (“OAH”), an independent state agency, for an evidentiary hearing. 4. The Registrar’s Order Setting Administrative Hearing described the events that occurred after the Complaint was referred to OAH in relevant part as follows: On or about March 28, 2012, the Registrar received an Order Vacating Hearing from the Office of Administrative Hearings providing that during the beginning phase of the hearing, the parties reached an agreement and did not need to continue with the formal hearing process. Complainant agreed to withdraw the Complaint, in return for a total payment of $7,575.00 to Complainant at a rate of $350.00 per month, until the amount of $7,575.00 was paid in full. Respondent provided a check in the amount of $350.00 at the hearing, which constituted the March 2012 payment.

On or about May 25, 2012, Complainant submitted written correspondence in this matter providing that, “[a]fter many phone calls, texts and emails to [Respondent], they have failed to abide by the settlement reached at the administrative hearing . . . . To date, the only payment [Complainant] ha[s] received is the payment that was made at the hearing. Therefore, [Complainant] is requesting that the [C]omplaint remain open and action be taken against the above mentioned license.” The Registrar treated this submission as a Notice of Non-Compliance.

Upon review and consideration of Complainant’s Notice of Non-Compliance, as well as the entire file in this matter, IT IS 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 of testimony as to whether or not Respondent has engaged in conduct in violation of A.R.S. § 32-1154(A)(11) as set forth in the Citation and Complaint, and further breached the terms set of the parties’ settlement. If the assigned Administrative Law Judge recommends that discipline is to be imposed against Respondent’s 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 committed by Respondent, Respondent further breached the terms of the parties’ settlement.

5. The Registrar resubmitted the matter to the OAH for another evidentiary hearing. 6. The Registrar issued a Notice of Hearing setting a hearing on November 15, 2012, at 1:00 p.m. at the OAH. The Registrar mailed a copy of the Notice of Hearing to Respondent at its address of record and at 3414 South Third Place, Phoenix, Arizona 85040. 7. The Registrar’s Notice of Hearing advised the parties that failure to attend the hearing would likely result in an adverse ruling against them. 8. A hearing was held on November 15, 2012. Charlene Reed, Complainant’s owner, testified. 9. 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 twenty 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. 10. Ms. Reed testified that although the settlement agreement required Respondent to make monthly payments in the amount of $350.00, Respondent made no further payments to Complainant after the initial $350.00 payment at the hearing. 11. Ms. Reed testified that as of November 15, 2012, Respondent owed Complainant $7,225.00 under the settlement agreement. Ms. Reed testified that this amount was comprised solely of principal and did not include interest or collection fees. 12. Administrative notice is taken of Respondent’s prior License record as reflected on the Registrar’s public website. Such prior License record reflects that on December 3, 2012, Respondent’s License No. A- 11.094620-C was current and that one complaint was pending against the license. CONCLUSIONS OF LAW This matter lies within the Registrar’s jurisdiction.[1] The Notices of Hearing that the Registrar mailed to Respondent at its address of record and at another address were reasonable. Respondent is deemed to have received notice of the hearing.[2] Complainant bears the burden of proof to establish Respondent’s statutory violation by a preponderance of the evidence.[3] “A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.”[4] Complainant established that Respondent owes Complainant $7,225.00 for consulting and other professional services rendered in connection with Respondent’s contracting business. Therefore, Complainant established that Respondent violated A.R.S. § 32-1154(A)(11)[5] by breaching the settlement agreement that it made at the initial hearing and by failing to pay Complainant $7,225.00. RECOMMENDED ORDER Based on the foregoing, it is recommended that the Registrar immediately suspend License No. A-11.094620-C previously issued to Respondent Moreno Welding Inc. until it pays Complainant Responsible Building Service $7,225.00. It is further recommended that Respondent’s License No. A-11.094620-C shall remain suspended until Respondent submits written proof to the Registrar, and the Registrar accepts such proof, that Respondent has paid the full amount of $7,225.00 in certified funds to Complainant. The disciplinary suspension in this matter may be lifted upon receipt of the written proof described above and the Registrar may close the Complaint in Case No. 2011-6188. 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 five days from the date of that certification. Done this day, December 3, 2012. /s/ Diane Mihalsky Administrative Law Judge Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors ----------------------- [1] See A.R.S. §§ 32-1151 to 32-1169. [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] Morris K. Udall, Arizona Law of Evidence § 5 (1960). [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.”

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