ALJDEC decisions subject to certification as final

2012A-3727-ROC · Registrar of Contractors · 2013-10-10

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: October 10, 2013, at 8:00 a.m. APPEARANCES: Jensen Enterprises Inc (hereinafter “Jensen”) appeared through its Phoenix plant manager, Dale Curtis Godwin. Boss Grading and Construction Clean Up Inc (hereinafter “Boss” or “Respondent”) failed to appear. ADMINISTRATIVE LAW JUDGE: M. Douglas _____________________________________________________________________ Evidence and testimony were presented and the following Findings of Fact, Conclusions of Law and Recommended Order are made: FINDINGS OF FACT Boss is the holder of License No. KB-2.170492-D issued by the Registrar of Contractors. Jensen supplied concrete curbs to Boss on or about August 15, 2011, for the total sum of $12,816.00. Boss paid Jensen the sum of $6,663.00 when the concrete curbs were ordered and agreed to pay the remaining sum of $6,153.00 when the concrete curbs were delivered. Jensen delivered the concrete curbs as agreed and Boss installed the concrete curbs in the parking lot of the Chandler-Gilbert Community College. There was no dispute that Boss had been paid for the installation of the concrete curbs. Boss failed to pay the remaining sum of $6,153.00 due to Jensen for the concrete curbs. Jensen then repeatedly attempted to obtain payment for the unpaid sum of $6,153.00. When Boss failed to pay Jensen for the concrete curbs despite repeated requests that it do so, Jensen filed a formal Complaint against Boss with the Registrar of Contractors. Boss still failed to pay Jensen the remaining $6,153.00 due for the concrete curbs and the Registrar of Contractors issued a Citation and Complaint against Boss charging Boss with a possible violation of A.R.S. § 32-1154(A)(11).[1] Jensen’s Phoenix Plant Manager, Dale Curtis Godwin (hereinafter “Mr. Godwin”) testified that Jensen had repeatedly attempted to obtain payment of the $6,153.00 that was owed to Jensen from Boss for the concrete curbs. Mr. Godwin stated that Jensen’s repeated attempts to obtain payment from Boss were unsuccessful. Mr. Godwin testified that the $6,153.00 was for the principal amount due for the concrete curbs and that the $6,153.00 did not include any interest or fees. Administrative notice is taken of Boss’s prior license record as reflected on the Registrar of Contractors’ public website on October 10, 2013. Such prior license record reflects that License No. KB-2.170492-D of Boss was suspended for lack of qualifying party on September 5, 2013, and suspended for lack of bond on May 26, 2013. License No. KB-2.170492-D of Boss had been previously suspended for non-renewal from February 1, 2012, through February 14, 2012, and suspended for non-renewal on from January 1, 2010, through February 4, 2010. CONCLUSIONS OF LAW 1. The burden of proof at an administrative hearing falls to the party asserting a claim, right, or entitlement and the standard of proof on all issues in these matters is by a preponderance of the evidence. See A.A.C. R2-19-119. 2. 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). 3. Boss failed to pay Jensen $6,153.00 when due for materials that were rendered to Boss in connection with Boss’s operations as a licensed contractor. Boss has failed to pay Jensen the $6,153.00 despite repeated requests that it do so. This Tribunal concludes that Boss violated the charged provision of A.R.S. § 32-1154(A)(11). RECOMMENDed order In view of the foregoing, it is recommended that License No. KB- 2.170492-D of Boss shall be revoked. In the event of certification of this 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 the certification.

Done this day, October 10, 2013.

/s/ M. Douglas Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors

----------------------- [1] A.R.S. § 32-1154(A)(11) includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, failure by a licensee or agent or official of 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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