ALJDEC decisions subject to certification as final

2012A-1645-ROC · Registrar of Contractors · 2012-09-11

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: August 23, 2012

APPEARANCES: Complainant was represented by Senior Vice President/Credit Administrator Rilus A. Graham, III, and Credit Manager Lynda Jones; no one appeared on behalf of Respondent.

ADMINISTRATIVE LAW JUDGE: Eric A. Bryant _____________________________________________________________________

Complainant brings this action to force Respondent to pay a remaining balance for construction materials provided to Respondent as part of Respondent’s contracting business. As noted above, Respondent did not appear at the hearing; therefore, Complainant’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 Rilus Graham. 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 Respondent be ordered to pay $1,525.60 to Complainant or have its licensed revoked. FINDINGS OF FACT 1. Respondent is the holder of license K-21.253936-D, a specialty residential contractor’s license issued by the ROC. The license authorizes Respondent to perform landscaping and irrigation for residential projects. Darin Lawrence Macari is the Qualifying Party. Administrative notice is hereby taken of Respondent’s license record as reflected on the ROC’s public website on September 11, 2012. According to that information, Respondent’s license was suspended on July 26, 2012, and remains suspended until Respondent achieves compliance with an ROC order. 2. Complainant is a material supplier from whom Respondent purchased materials for use in Respondent’s construction business throughout calendar year 2011. Complainant’s witness, Rilus Graham, briefly testified about the amounts past due from Respondent, referring to individual invoices attached to the complaint filed with the ROC and also provided in paper form at the hearing. 3. Complainant has provided documentation showing that the outstanding amount due for materials is $1,525.60 and for interest is $94.34. 4. Respondent did not appear at the hearing to dispute Complainant’s evidence. CONCLUSIONS OF LAW 1. The burden of proof at an administrative hearing is generally upon a complainant.[1] Further, the standard of proof at hearing is by preponderance of the evidence.[2] Therefore, Complainant bears the burden of showing, by a preponderance of the evidence, that Respondent has violated the statutes cited in the Citation and Complaint.[3] Complainant has met that burden. 2. The Citation and Complaint cites the “no pay” provision found in A.R.S. § 32-1154(A)(11), which 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 Respondent has violated that provision. 3. Respondent has failed to pay Complainant $1,525.60 that is due for materials in connection with Respondent’s work as a contractor. The interest amount is not for materials and is, therefore, not applicable and not recoverable in this forum. 4. Respondent’s license is suspended. Pursuant to A.R.S. § 32- 1154(C), the suspension of a license does not deprive the ROC or this tribunal of jurisdiction and does not render the ROC powerless to discipline the license further. 5. Respondent should be given an opportunity to pay the remaining balance and if Respondent fails to do so, its license should be revoked. RECOMMENDED ORDER IT IS RECOMMENDED that license K-21.253936-D held by Respondent Hybrid Landscape Development, LLC be revoked on the effective date of the Registrar’s Order unless the Registrar receives written proof of payment to Complainant of the sum of $1,525.60, and the Registrar accepts such written proof. IT IS FURTHER RECOMMENDED that if Respondent provides such written proof, on or before the effective date of the Registrar’s Order, the license revocation shall not take place and case 2012-1645 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, September 11, 2012.

/s/ Eric A. Bryant Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors ----------------------- [1] Utah Construction Company v. Berg et al, 68 Ariz. 285, 205 P.2d 367 (1949). [2] Smith v. Arizona Dept. of Transportation, 146 Ariz. 430, 706 P.2d 756 (App. 1985). [3] Culpepper v. State, 187 Ariz. 431, 437, 930 P.2d 508, 514 (Ct. App. 1996).

-----------------------

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