ALJDEC decisions subject to certification as final

2012A-1401-ROC · Registrar of Contractors · 2012-07-25

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: July 9, 2012, at 1:00 p.m. APPEARANCES: Complainant Construction Tool and Supply appeared through Vince Ferguson, its owner; Respondent Dean Douglas Development LLC did not appear. ADMINISTRATIVE LAW JUDGE: Diane Mihalsky _____________________________________________________________________

FINDINGS OF FACT 1. The Arizona Registrar of Contractors (“the Registrar”) issued License No. K-11.270963-D to Dean Douglas Development LLC (“Respondent”). Respondent’s current address of record on the Registrar’s public website is 1490 South Price Road #315, Chandler, Arizona 85286-6607. 2. Construction Tool and Supply (“Complainant”) is a materialman that is in the business of selling tools and supplies to contractors like Respondent. The Registrar received a complaint from Complainant against Respondent alleging that it owed Complainant $1,682.27 for tools used on various projects. 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. The address on Respondent’s letterhead was its address of record. 5. The Registrar referred the matter to the Office of Administrative Hearings (“the OAH”), an independent state agency, for an evidentiary hearing. 6. The Registrar issued a Notice of Hearing setting a hearing on July 9, 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. 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 July 9, 2012. Vince Ferguson, Complainant’s owner, submitted two exhibits and 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 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. 10. Mr. Ferguson testified and submitted an Accounts Receivable Aging Report and invoices to establish that Respondent owed Complainant $1,507.83 in principal for tools that Complainant had furnished to Respondent on credit.[1] 11. Administrative notice is taken of Respondent’s prior License record as reflected on the Registrar’s public website on July 23, 2012. Such prior License record reflects that Respondent’s License was current. CONCLUSIONS OF LAW This matter lies within the Registrar’s jurisdiction.[2] 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.[3] Complainant bears the burden of proof to establish Respondent’s statutory violation by a preponderance of the evidence.[4] “A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.”[5] Complainant established that Respondent purchased $1,507.83 worth of tools from Complainant and that Respondent has not paid Complainant anything for the tools. Therefore, Complainant established that Respondent violated A.R.S. § 32- 1154(A)(11)[6] by failing to pay Complainant $1,507.83 for tools 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 suspend License No. K-11.270963-D previously issued to Respondent Dean Douglas Development LLC until it pays Complainant Construction Tool and Supply $1,507.83. 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 $1,507.83 to Complainant in certified funds, the Registrar not suspend Respondent’s license but, instead, close the complaint in Case No. 2012-1401. 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 25, 2012.

/s/ Diane Mihalsky Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors ----------------------- [1] The remainder of the $1,682.27 on Complainant’s complaint was for interest and collection fees. [2] See A.R.S. §§ 32-1151 to 32-1169. [3] See A.R.S. §§ 41-1092.04; 41-1092.05(D). [4] 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). [5] Morris K. Udall, Arizona Law of Evidence § 5 (1960). [6] 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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