ALJDEC decisions subject to certification as final

2013A-20-ROC · Registrar of Contractors · 2013-09-17

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: August 29, 2013 APPEARANCES: Complainant was represented by Jesse Callahan. Respondent did not appear. ADMINISTRATIVE LAW JUDGE: Tammy L. Eigenheer _____________________________________________________________________ FINDINGS OF FACT 1. G N D Construction LLC (Respondent) is the holder of License No. A.268562-C issued by the Registrar of Contractors (Registrar). 2. Regional Pavement Maintenance Of Arizona Inc. (Complainant) filed a Complaint against Respondent with the Registrar alleging that Respondent had failed to pay Complainant the sum of $130,592.30 for new asphalt and paving that Complainant performed at two different sites in Salt River, Arizona pursuant to contracts with Respondent. 3. The parties were unable to resolve their differences, and Complainant requested an administrative hearing. The Registrar then issued a formal Citation and Complaint charging Respondent with a possible violation of A.R.S. § 32-1154(A)(11). Hearing Evidence 4. On September 10, 2011, Complainant and Respondent entered into a contract for Complainant to furnish, place, and compact asphalt on Center Street in Salt River, Arizona for a total contract price of $87,835.00. 5. On September 10, 2011, Complainant and Respondent entered into a contract for Complainant to furnish, place, and compact asphalt on Victory Acres Loop in Salt River, Arizona for a total contract price of $102,982.80. 6. Complainant performed the work indicated in the contracts. 7. Respondent made payment on the Victory Acres Loop project in the amount of $60,225.50. 8. On July 25, 2012, Respondent provided Complainant a check for $87,835.00 in payment for the Center Street project. When Complainant attempted to deposit the check, the check was returned for insufficient funds. 9. The Registrar issued a Notice of Hearing setting a hearing at 1:00 p.m. on August 29, 2013. The Registrar mailed a copy of the Notice of Hearing to Respondent at its address of record. The Registrar’s Notice of Hearing advised the parties that failure to attend the hearing would likely result in an adverse ruling against them. 10. A hearing was held on August 29, 2013. Joseph DiGiugno, an Officer of Complainant, testified and submitted one exhibit. 11. Respondent did not request to appear telephonically at the hearing or to continue the hearing. Although the start of the duly noticed hearing was delayed 20 minutes to allow Respondent additional travel time, Respondent did not appear through an authorized member, employee, or attorney and did not contact the OAH to request that the start of the hearing be further delayed. Consequently, Respondent did not present any evidence to defend its license. 12. Mr. DiGiugno presented testimony to establish that Respondent owed Complainant $130,592.30 in principal for the work performed. 13. Mr. DiGiugno presented a letter from Respondent that was sent to the general contractor on the Center Street project and the Victory Acres Loop project admitting it had forged Unconditional Waivers and Releases of Lien from Respondent’s subcontractors, including Complainant, to induce the general contractor to release funds on the projects. 14. Administrative notice is taken of Respondent’s prior License record as reflected on the Registrar’s public website on September 13, 2013. Such prior License record reflects that Respondent’s License was revoked on July 31, 2013. CONCLUSIONS OF LAW 1. This matter lies within the Registrar’s jurisdiction. See A.R.S. §§ 32-1151 to 32-1169. 2. Respondent’s revoked license does not deprive Complainant of its right to prosecute its complaint or prevent the Registrar from determining the merits of the complaint. See A.R.S. § 32-1154(D). 3. The Notice of Hearing that the Registrar mailed to Respondent at its address of record was reasonable. Respondent is deemed to have received notice of the hearing. See A.R.S. §§ 41-1092.04; 41- 1092.05(D). 4. 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. 5. 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). 6. 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.

7. Complainant established the existence of the contracts and that it completed the work required by the contracts in a professional and workmanlike manner. 8. The evidence established Respondent had not made any payment toward outstanding balance of $130,592.30. 9. Therefore, Complainant established that Respondent violated A.R.S. § 32-1154(A)(11) by failing to pay Complainant $130,592.30 for services rendered in connection with Respondent’s contracting business. 10. Based upon Respondent’s violation of the provisions of A.R.S. § 32- 1154(A)(11), grounds exist to impose discipline against Respondent’s license RECOMMENDed order Based on the foregoing, it is recommended that the Registrar revoke G N D Construction LLC’s License No. A.268562-C issued by the Registrar until it has provided to the Registrar, and the Registrar has accepted, documents that establish that it has paid Complainant $130,592.30 in certified funds. It is further recommended that when and if the Registrar receives and accepts Respondent’s evidence that it has paid Complainant $130,592.30 in certified funds, the Registrar may close the Complaint in Case No. 2013-20. 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, September 17, 2013.

/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