ALJDEC decisions subject to certification as final

2012A-5225-ROC · Registrar of Contractors · 2013-05-06

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: April 30, 2013, at 8:00 a.m. APPEARANCES: Desert Vista Roofing LLC (hereinafter “Complainant”) appeared through its Qualifying Party, Rojelio Ler Dominguez, Jr. Duck Creek Ranch Construction and Excavating LLC (hereinafter “Duck Creek”) 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 Duck Creek is the holder of License No. B.245909-R issued by the Registrar of Contractors. This is a residential matter where Complainant subcontracted with Duck Creek to install a new metal roof on a residence located at 615 W. Vista, Bisbee, Arizona for the total sum of $13,964.00. The homeowner paid $7,946.00 to the material supplier for the purchase of the roofing materials necessary for the construction of the new roof. Complainant installed the new metal roof on the residence in a timely fashion. On August 31, 2012, Complainant invoiced Duck Creek for the remaining $6,018.00 due to Complainant for its labor and profit pursuant to the terms of the parties’ subcontract agreement. Duck Creek failed to pay Complainant for the completed roofing work. Duck Creek informed Complainant that the homeowner had not fully paid Duck Creek for the new roof and that Duck Creek would pay Complainant in full when the homeowner paid Duck Creek. On or about October 10, 2012, Complainant contacted Duck Creek and demanded that Duck Creek pay the money that was owed to Complainant for the completed roofing work. Duck Creek assured Complainant that the construction project was nearly complete and that Duck Creek would have the homeowner pay the $6,018.00 directly to Complainant. Complainant then filed a formal Complaint against Duck Creek with the Registrar of Contractors. Pursuant to the filing of the formal Complaint, a Citation and Complaint was issued by the Registrar of Contractors charging Duck Creek with alleged violations of A.R.S. § 32-1154(A)(11),[1] and A.R.S. § 32-1154(A)(13), namely, A.R.S. § 32-1124(B). [2] Duck Creek answered the Citation and Complaint and acknowledged that Duck Creek owed Complainant an unpaid balance for the completed roofing work. In an attached letter Duck Creek informed Complainant that “we are invoicing $3,706.50 from that job once complete which will then be paid to you. I cannot commit to any time frame as to when the remaining balance will be paid to you.”[3] Rojelio Ler Dominguez, Jr. (hereinafter “Mr. Dominguez”) testified that Complainant had completed the agreed-upon roofing work in a professional and workmanlike manner. Mr. Dominguez stated that the homeowner paid the material supplier directly for the roofing materials utilized in the construction project. Mr. Dominguez testified that the homeowner was satisfied with Complainant’s roofing work and that the homeowner had fully paid Duck Creek for the roofing work completed by Complainant. Mr. Dominguez testified that Complainant’s roofing work was only a portion of the construction work that was to be performed on the residence at issue. Mr. Dominguez stated that Duck Creek “left the homeowner in the lurch.” Dana Dominguez (hereinafter “Ms. Dominguez”) testified that she is Complainant’s bookkeeper. Ms. Dominguez stated that she had repeatedly invoiced Duck Creek for the $6,018.00 that was owed to Complainant. Ms. Dominguez testified that Duck Creek agreed that it owed the money to Complainant and assured Complainant that Duck Creek would pay Complainant as soon as the homeowner fully paid Duck Creek for its work on the residence at 615 W. Vista, Bisbee, Arizona. Ms. Dominguez stated that Duck Creek had failed to pay any part of the $6,018.00 owed to Complainant, despite repeated assurances that Duck Creek would do so. Carlos W. Archuleta, Jr. (hereinafter “Mr. Archuleta”) testified that he is the owner of the residence at 615 W. Vista, Bisbee, Arizona. Mr. Archuleta stated that in February 2011, he contracted with Duck Creek to have his residence remodeled including the installation of a new metal roof. Mr. Archuleta testified that he had paid Duck Creek in full for the roofing work that Complainant performed on his residence. Mr. Archuleta testified that Duck Creek had abandoned the construction project at his residence, leaving Mr. Archuleta with an unfinished construction project. Duck Creek failed to place its contractor’s license number preceded by the acronym “ROC” on its written communications with Complainant.[4] Administrative notice is taken of Duck Creek’s prior license record as reflected on the Registrar of Contractors’ public website on April 30, 2013. Such prior license record reflects that License No. B.245909-R of Duck Creek is current. License No. B.245909-R of Duck Creek is on disciplinary probation from April 22, 2013, through October 19, 2013. License No. B.245909-R of Duck Creek was suspended as discipline from March 22, 2013, through April 21, 2013. License No. B.245909-R of Duck Creek was suspended for non-renewal from October 1, 2012, through December 3, 2012. 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. The homeowner of the residence where Complainant installed the roof fully paid Duck Creek for Complainant’s work. Duck Creek failed to pay Complainant the sum of $6,018.00 when due for roofing work rendered by Complainant to Duck Creek in connection with Duck Creek’s operations as a contractor. This Tribunal concludes that Duck Creek violated the charged provision of A.R.S. § 32-1154(A)(11). 4. Duck Creek failed to place its contractor’s license number preceded by the acronym “ROC” on its written communications with Complainant. This Tribunal concludes that Duck Creek violated the charged provision of A.R.S. § 32-1154(A)(13), namely A.R.S. § 32-1124(B). RECOMMENDed order In view of the foregoing, it is recommended that License No. B.245909- R of Duck Creek shall be revoked on the effective date of the Registrar’s Order unless the Registrar of Contractors receives and accepts written proof of the following: • Duck Creek has, by certified check or its equivalent, fully paid the sum of $6,018.00 to Complainant, and • Duck Creek has brought all of its written contracts and communications to within full compliance with the provisions of A.R.S. § 32-1124(B). It is further recommended that if on or before the effective date of the Order entered in this matter, Duck Creek provides acceptable written proof that it has fully paid the sum of $6,018.00 to Complainant by certified check or its equivalent and that Duck Creek has brought all of its written contracts and communications to within full compliance with the provisions of A.R.S. § 32-1124(B), then the above-provided license revocation shall not take place but, instead, License No. B.245909-R of Duck Creek shall be placed on active suspension for a period of 30 days, followed immediately by a period of disciplinary probation for one year. This alternative penalty shall commence, if at all, on the effective date of the Order entered in this matter. It is further recommended, in addition to the above provided penalties, if any, that any continuation or restoration of Duck Creek’s contracting rights, whether or not probationary, shall be subject to a condition that Duck Creek first post an additional surety bond, cash deposit or alternative deposit for a period of twenty-four (24) months, including future renewal periods, in the amount of $1,500.00, such bond or deposit to be in addition to the required surety bond, cash deposit or recovery fund participation set forth in A.R.S. § 32-1152(D). Cash or alternative additional deposits, if utilized, shall be returned only after the expiration of an additional two-year period following the above- provided twenty-four (24) month period and only if no claims are then pending. 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, May 7, 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 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. [2] A.R.S. § 32-1154(A)(13) includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, “[f]ailure in any material respect to comply with this chapter.” A.R.S. § 32-1124(B) provides, in pertinent part, as follows:

Licenses issued under this chapter and any renewals shall be signed by the registrar or the registrar's designated representative and by the licensee. The license shall be nontransferable, and satisfactory evidence of possession shall be exhibited by the licensee upon demand. The license number appearing on any licenses held by the licensee shall be preceded by the acronym "ROC" and shall be posted in a conspicuous place on premises where any work is being performed, shall be placed on all written bids submitted by the licensee and shall be placed on all broadcast, published, internet or billboard advertising, letterheads and other documents used by the licensee to correspond with the licensee's customers or potential customers in the conduct of business regulated by this chapter. A violation of this subsection relating to posting and placement of license numbers shall be, at the discretion of the registrar, grounds for disciplinary action pursuant to section 32-1154, subsection A, paragraph 13, but not grounds for preventing the award of a contract, voiding an awarded contract, or any other claim or defense against the licensee. For the purposes of this subsection, advertising does not include a trade association directory listing that is distributed solely to the members of the association and not to the general public.

[3] See Written Answer To Citation and Complaint [4] See Exhibit No. C-5 (Electronic communications from Duck Creek).

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