ALJDEC decisions subject to certification as final

2012A-717-ROC · Registrar of Contractors · 2012-07-19

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: July 5, 2012, at 8:00 a.m. APPEARANCES: Complainant appeared through its authorized representative, Devin Wayne Anderson. Rowland Companies Southwest Inc. (hereinafter “Rowland”) 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. Rowland is the holder of License No. B-1.181945-C issued by the Registrar of Contractors. 2. Complainant performed asphalt work on a commercial construction project identified as the Scottsdale Centre pursuant to an oral construction agreement with Rowland. After Rowland failed to make any payments for several months, Complainant contacted Rowland and requested full payment for its work. Rowland informed Complainant that there was a problem with the owner of the construction project and that Rowland would keep Complainant informed of the situation.[1] 3. On June 2, 2011, Complainant presented Rowland with invoice no. 060211 in the amount of $20,959.90.[2] 4. On June 9, 2011, Complainant presented Rowland with invoice no. 0609111 in the amount of $2,280.00.[3] 5. On June 15, 2011, Rowland issued an email to Complainant requesting a final billing for all work performed at the Scottsdale Centre.[4] 6. Sandy Anderson (hereinafter “Mrs. Anderson”) testified the total balance due to Complainant from Respondent was $23,239.90. Mrs. Anderson testified that the $23,239.90 did not include interest or finance charges.[5] 7. Mrs. Anderson testified that Complainant did not file a pre-lien on the construction project because the construction work performed by Complainant consisted of a series of small projects and there was no written agreement for the projects. Mrs. Anderson stated that Complainant signed a Conditional Waiver and Release on Final Payment based on Rowland’s promise that Complainant would be paid the amount of $23,239.90.[6] 8. There was no dispute that Complainant performed its construction work in a professional and workmanlike manner. 9. There was no dispute that Rowland failed to pay Complainant the sum of $23,239.90 despite Complainant’s repeated requests that Rowland pay Complainant for its completed construction work. 10. Rowland’s failure to pay the aforementioned sum of $23,239.90 to Complainant is not found to be in good faith and accordingly, under all of the facts and circumstances presented herein, Rowland’s conduct is found to constitute a violation of the applicable charged provision of A.R.S. § 32-1154(A)(11).[7] 11. Administrative notice is taken of Respondent’s prior license record as reflected on the Registrar of Contractors’ public website on July 18, 2012. Such prior license record reflects that License No: B-1.181945-C of Rowland was revoked on June 7, 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. Rowland failed to pay the sum of $23,239.90 to Complainant despite Rowland’s agreement to pay Complainant for its completed construction work. This tribunal concludes that Rowland 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. B- 1.181945-C of Rowland Companies Southwest Inc., shall be revoked on the effective date of the Registrar’s Order unless the Registrar of Contractors receives and accepts written proof that Rowland has paid the sum of $23,239.90 to Complainant. It is further recommended that if, on or before the effective date of this Order, Rowland provides acceptable proof that it has paid the sum of $23,239.90 to Complainant then the above provided license revocation shall not take place and that this matter be 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, June 22, 2012.

/s/ M. Douglas Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors

----------------------- [1] 7/5/12 Hearing Record (hereinafter “H.R.”) at 2:33-3:33. [2] See Exhibit No. C-1 (Invoice No. 0602111). [3] See Exhibit No. C-1 (Invoice No. 0609111). [4] See Exhibit No. C-1 (6/15/11 Email). [5] H.R. at 7:40-7:53. [6] H.R. at 6:37-7:28. [7] A.R.S. § 32-1154(A)(11) 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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