ALJDEC decisions subject to certification as final

2012A-669-ROC · Registrar of Contractors · 2012-11-09

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: November 9, 2012, at 8:00 a.m. APPEARANCES: M S International Inc (hereinafter “Complainant”) appeared through its business administration manager and authorized representative, Bhavesh Gandhi. French Quarter Flooring LLC (hereinafter “French”) 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 1. French is the holder of License No. C-8.240989-R issued by the Registrar of Contractors. 2. Complainant provided construction materials for several construction projects wherein French was acting in the capacity of a licensed contractor. 3. French failed to pay Complainant for the construction materials and Complainant filed a formal complaint against French with the Registrar of Contractors alleging that French owed Complainant the sum of $49,289.86 for construction materials delivered to French. 4. Pamela Sanderson (hereinafter “Ms. Sanderson”) testified that she was a former office employee of French. Ms. Sanderson stated that materials received from Complainant were utilized in several construction projects. Ms. Sanderson testified that French failed to pay Complainant for its construction materials despite the fact that the owners had fully paid French for the construction projects. Ms. Sanderson stated that French’s owner repeatedly utilized French’s business account for his personal use. 5. Edward Rodriguez (hereinafter “Mr. Rodriguez”) testified that he was a former store manager for French. Mr. Rodriguez stated that French purchased construction materials from Complainant and utilized the construction materials in various construction projects. Mr. Rodriguez testified that French failed to pay Complainant for the construction materials despite the fact that French had been paid by the owners of the construction projects. 6. Sudha Duggal (hereinafter “Mr. Duggal”) testified that he is the Phoenix branch manager for Complainant. Mr. Duggal stated that French owed Complainant the sum of $49,289.86 for construction materials that were rendered to French in connection with French’s operations as a licensed contractor. Mr. Duggal testified that the sum of $49,289.86 did not include any additional amount for interest or finance fees. 7. Complainant’s business administration manager and authorized representative, Bhavesh Gandhi (hereinafter “Mr. Gandhi”), testified that French failed to respond to his numerous attempts to obtain payment from French for the construction materials rendered to French by Complainant. Mr. Gandhi stated that French owed Complainant the sum of $49,289.86 for the construction materials that had been rendered to French. 8. Administrative notice is taken of French’s prior license record as reflected on the Registrar of Contractors’ public website on November 9, 2012. Such prior license record reflects that License No. C-8.240989-R of French is current.

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. Undisputed credible testimony and evidence established that the sum of $49,289.86 is the principal balance due and owing to Complainant from French for construction materials rendered to French in connection with French’s operations as a licensed contractor. Notwithstanding repeated attempts and billings over a prolonged period of time, said balance remains unpaid despite the undisputed fact that French had been fully paid for the construction materials. This Tribunal concludes that French violated the charged provision of A.R.S. § 32-1154(A)(11).[1] RECOMMENDed order In view of the foregoing, it is recommended that commencing on the effective date of the Registrar’s Order, License No. C-8.240989-R of French shall be suspended until the Registrar of Contractors receives and accepts written proof that French has fully paid the sum of $49,289.86, in certified funds, to Complainant for construction materials that had been rendered to French in connection with French’s operations as a licensed contractor. It is further recommended that if on or before the effective date of this Order, French provides acceptable written proof to the Registrar of Contractors that it has paid the sum of $49,289.86, in certified funds, to Complainant, then the above provided License suspension shall not take place and that this matter shall be closed. 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, November 9, 2012.

/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.

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