ALJDEC decisions subject to certification as final

2012A-2014-ROC · Registrar of Contractors · 2012-12-03

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: November 14, 2012 APPEARANCES: Complainant Valley Tree Works LLC appeared through Harry Spieker, Owner. Respondent The Kams 3 G Group LLC appeared through Kevin Robinson, its Qualifying Party. ADMINISTRATIVE LAW JUDGE: Tammy L. Eigenheer _____________________________________________________________________

FINDINGS OF FACT 1. The Kams 3 G Group LLC (Respondent) is the holder of License No. A- 21.213373-C issued by the Registrar of Contractors (the Registrar). 2. Complainant performed tree trimming and tree removal work for Respondent at Signal Butte Manor 2 Home Owners Association in Mesa, Arizona (the Signal Butte Manor project). Complainant completed its work and presented its invoice in the sum of $12,675.00 for the completed work to Respondent. 3. Respondent paid Complainant $2,100.00 towards the invoice. 4. When Respondent failed to comply with Complainant’s repeated requests for the remaining balance, Complainant filed a formal Complaint against Respondent with the Registrar. 5. After the Complaint was filed, Respondent made additional payments to Complainant totaling $800.00. 6. After Respondent did not fully resolve Complainant’s Complaint, the Registrar issued a Citation and Complaint against Respondent charging a possible violation of A.R.S. § 32-1154(A)(11). 7. Respondent filed a timely written answer to the Citation and Complaint, denying any statutory violation. 8. The Registrar referred the matter to the Office of Administrative Hearings (OAH), an independent state agency, for an evidentiary hearing. 9. A hearing was held on November 14, 2012. Harry Spieker, Complainant’s Owner, submitted five exhibits and testified. Kevin Robinson, Respondent’s Qualifying Party, submitted one exhibit and testified. 10. Mr. Spieker submitted payment records and testimony to establish that Respondent owed Complainant $9,775.00 in principal for work that Complainant performed on the Signal Butte Manor project. The balance owed did not include any interest or late fees. 11. Mr. Robinson submitted payment records and testimony to establish that Respondent had paid Complainant $2,900.00 on the invoice for the Signal Butte Manor project. Mr. Robinson testified Respondent was unable to locate, and Complainant was unable to produce, a signed contract for the Signal Butte Manor project. Mr. Robinson stated that it was not until the Complaint was filed that Respondent realized it did not have a contract. Mr. Robinson acknowledged that Respondent was paid in full for the Signal Butte Manor project and that the work was completed. Mr. Robinson acknowledged that Respondent had not been invoiced and had not paid another contractor for the Signal Butte Manor project. 12. Mr. Spieker acknowledged that Complainant did not have a signed contract with Respondent, but testified that the parties had a prior history of verbal contracts that had always been honored in the past. 13. Administrative notice is taken of Respondent’s prior license record as reflected on the Registrar’s public website on December 3, 2012. Such prior License record reflects that Respondent’s License No. A- 21.213373-C is current and that one complaint is pending against the license. CONCLUSIONS OF LAW This matter lies within the Registrar’s jurisdiction. See A.R.S. §§ 32- 1151 to 32-1169. Complainant bears the burden of proof to establish Respondent’s statutory violations by a preponderance of the evidence. 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). “A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.” Morris K. Udall, Arizona Law of Evidence § 5 (1960). 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.

Complainant established that Complainant performed work on the Signal Butte Manor project for which Respondent agreed to pay a total of $12,675.00 and that Respondent had paid only $2,900.00, leaving an unpaid balance of $9,775.00. Therefore, Complainant established that Respondent violated A.R.S. § 32- 1154(A)(11) by failing to pay Complainant $9,775.00 for work that Complainant performed for Respondent in connection with its contracting business. Based upon the above violations of the provisions of A.R.S. § 32-1154(A), grounds exist to impose discipline against Respondent’s license. 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. A-21.213373-C previously issued to Respondent The Kams 3 G Group LLC. 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 $9,975.00 to Complainant in certified funds, the Registrar not suspend Respondent’s license but, instead, close the complaint in Case No. 2012-2014. 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, December 3, 2012.

/s/ Tammy L. Eigenheer 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