ALJDEC decisions subject to certification as final

2011A-6801-ROC · Registrar of Contractors · 2012-05-25

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: May 9, 2012 APPEARANCES: Felipe Miranda appeared personally. Natani Incorporated did not appear. Josephine Work served as the Spanish/English interpreter. ADMINISTRATIVE LAW JUDGE: Brian Brendan Tully _____________________________________________________________________ Based upon the evidence of record, the Administrative Law Judge makes the following Findings of Fact, Conclusions of Law, and Recommended Order: FINDINGS OF FACT 1. Natani Incorporated (“Respondent”) is the holder of License No. K- 61.227670-D issued by the Registrar of Contractors (“Registrar”). 2. Respondent hired Felipe Miranda (“Complainant”) to perform roofing labor on an apartment complex located at 232 South McDonald, Mesa, Arizona. 3. On November 30, 2011, Complainant filed a written Complaint with the Registrar alleging non-payment by Respondent in the sum of $2,400.00 for labor on the subject project. According to the Complaint, the parties entered into a verbal contract for the roofing labor on October 19, 2010. Respondent completed his scope of work on October 26, 2010. The Registrar designated the Complaint as Case No. 2011- 6801. 4. The Registrar issued a Citation and Complaint charging Respondent with violating the provisions of A.R.S. §§ 32-1154(A)(10), 32-1154(A)(11), 32-1154(A)(17), and 32-1154(A)(18). 5. The Registrar forwarded Case No. 2011-6801 to the Office of Administrative Hearings, an independent agency, for an evidentiary hearing. 6. The Registrar issued a Notice of Hearing in Case No. 2011-6801 that advised the parties of the time, date, and location of the formal hearing. The Notice of Hearing was sent to the parties at their addresses of record with the Registrar. 7. The commencement of the scheduled hearing was delayed 15 minutes to allow for the late arrival of an authorized representative for Respondent. After the delay, the Administrative Law Judge conducted the hearing in Respondent’s absence. 8. Complainant is not a licensed contractor or an employee of Respondent. However, Complainant testified that he has received 1099 forms from Respondent when he was paid for other projects. 9. The uncontroverted evidence of record established that the parties had a verbal contract that provided that Respondent would pay Complainant the sum of $2,000.00, not $2,400.00 as stated in the Complaint, for roof labor performed on the subject project. 10. The uncontroverted evidence of record further established that Respondent did not pay Complainant the $2,000.00 contract price for Complainant’s work on the subject project. Complainant did pay his workers for their labor on the subject project. 11. Respondent contracted outside the scope of its Class K-61 Carpentry, Remodeling and Repairs contracting license by contracting with the property owner for work requiring a roofing contracting license. 12. At hearing, Complainant testified that the remaining sum of $400.00 that he claimed was owed in the Complaint is for another project with Respondent. However, Complainant’s testimony was vague and unpersuasive. Therefore, Complainant failed to present credible evidence to support that portion of his claim. 13. Administrative notice is taken of Respondent’s prior license record as reflected on the Registrar’s public website on May 29, 2012. Such license record reflects that Respondent’s License No. K-61.227670-D contracting license has been inactive since September 16, 2011. The license record further established that Respondent’s contracting license had been suspended for lack of bond from March 18, 2010, until September 16, 2011. There is one open complaint listed against Respondent’s license. 14. Complainant performed roofing labor for Respondent in October 2010 while Respondent’s License No. K-61.227670 was suspended for lack of bond from March 18, 2010, until September 16, 2011. CONCLUSIONS OF LAW 1. The Registrar has jurisdiction over Respondent and the subject matter in this case. 2. Pursuant to the provisions of A.A.C. R2-19-119(B), Complainant has the burden of proof in this matter. The standard of proof is by a preponderance of the evidence. A.A.C. R2-19-119(A). 3. Respondent violated the provisions of A.R.S. § 32-1154(A)(10), as charged in the Citation and Complaint issued by the Registrar. The evidence of record established that Respondent aided and abetted Complainant, an unlicensed contractor, to complete roofing labor work on the subject project. 4. Respondent violated the provisions of A.R.S. § 32-1154(A)(11), as charged in the Citation and Complaint issued by the Registrar. The evidence of record established that Respondent failed to pay Complainant the contract price of $2,000.00 on the subject project. However, Complainant failed to present credible evidence to support his claim of being entitled to payment of $400.00 on another project. 5. Respondent violated the provisions of A.R.S. § 32-1154(A)(17), as charged in the Citation and Complaint issued by the Registrar. The evidence of record established that Respondent contracted beyond the scope of its Class K-61 contracting license by contracting with the owner of the apartment complex for the performance of roofing work. 6. Respondent violated the provisions of A.R.S. § 32-1154(A)(18), as charged in the Citation and Complaint issued by the Registrar. The evidence of record established that Respondent performed contracting on the subject project while its contracting license was suspended for lack of bond from March 18, 2010, until September 16, 2011. RECOMMENDED ORDER Respondent’s License No. K-61.227670-D shall be revoked on the effective date of the Order entered in Case No. 2011-6801. 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 30, 2012.

/s/ Brian Brendan Tully Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors -----------------------

Office of Administrative Hearings 1400 West Washington, Suite 101 Phoenix, Arizona 85007 (602) 542-9826