ALJDEC decisions subject to certification as final

2013A-361-ROC · Registrar of Contractors · 2013-08-21

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: August 2, 2013

APPEARANCES: Complainant was represented by Operations Manager Tom Bradburn, Respondent did not appear.

WITNESSES: Tom Bradburn

ADMINISTRATIVE LAW JUDGE: Eric A. Bryant _____________________________________________________________________

Complainant Brooks Bros Utility Contractors, LLC brings this action to compel Respondent KSB Technologies, LLC to pay a remaining balance for subcontracting services provided by Complainant to Respondent as part of Respondent’s contracting business. Respondent did not appear at the hearing on August 2, 2013, and this failure to appear is deemed to be voluntary; therefore, Complainant’s evidence is uncontested. This tribunal entered the complaint file received from the Registrar of Contractors (“ROC” or “Registrar”) into the record, along with Exhibit A, and took testimony from Tom Bradburn. Based upon the entire record, the Administrative Law Judge makes the following Findings of Fact, Conclusions of Law, and Recommended Order, finding violation of the law and recommending that Respondent be ordered to pay $10,376.67 to Complainant or have its licensed suspended. FINDINGS OF FACT 1. Respondent is the holder of License No: K-11.277409-D, a dual specialty contracting license issued by the ROC. The license authorizes Respondent to operate as an electrical contractor for both commercial and residential projects. Gilbert Lynn Elam is the Qualifying Party and a member of the Respondent LLC. Kelly Beckner is the only other member of the Respondent LLC.[1] 2. Complainant is a subcontractor who Kelly Beckner hired for the “Union Pacific” project in June 2012. Complainant performed work on the project. Respondent paid some of its outstanding debt to Complainant or Complainant’s suppliers, but has not paid a remaining balance due to Complainant for labor. 3. At hearing, Tom Bradburn provided uncontested testimony and documentation showing that several invoices for Complainant’s labor costs have not been paid.[2] The documentation shows a remaining balance of $10,376.67 due to Complainant for labor. 4. Respondent did not appear at the hearing to dispute Complainant’s evidence. CONCLUSIONS OF LAW 1. The burden of proof at an administrative hearing is generally upon a complainant.[3] Further, the standard of proof at hearing is by preponderance of the evidence.[4] Therefore, Complainant bears the burden of showing, by a preponderance of the evidence, that Respondent has violated the statutes cited in the Citation and Complaint.[5] Complainant has met that burden. 2. The Citation and Complaint cites the “no pay” provision found in Arizona Revised Statutes § 32-1154(A)(11) that prohibits the failure of a licensee to pay monies in excess of $750 “when due for materials or services” when the licensee has the capacity to pay or when the licensee has been paid for the project.” The evidence is sufficient to show that Respondent has violated that provision. 3. Respondent has failed to pay Complainant $10,376.67 that is due and owing for services provided to Respondent by Complainant in connection with Respondent’s work as a contractor. 4. Administrative notice is taken of Respondent’s prior license record as reflected on the ROC’s public website on August 20, 2013. That prior record shows that Respondent has held the license since June 2012 and has not been disciplined. 5. Respondent should be given an opportunity to pay the remaining balance and if Respondent fails to do so, its license should be suspended until it does. RECOMMENDED ORDER IT IS RECOMMENDED that License No: K-11.277409-D held by KSB Technologies, LLC, be suspended on the effective date of the Registrar’s Order until the Registrar receives written proof of payment in certified funds to Brooks Bros Utility Contractors, LLC, of the sum of $10,376.67, and the Registrar accepts such written proof. IT IS FURTHER RECOMMENDED that if KSB Technologies, LLC provides such written proof on or before the effective date of the Registrar’s Order, the license suspension shall not take place and case 2013-361 shall be closed.

In the event of certification of the 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 that certification.

Done this day, August 21, 2013.

/s/ Eric A. Bryant Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors ----------------------- [1] Administrative notice is taken of information on the ROC’s public website on August 20, 2013, from which the membership of the Respondent LLC is derived. [2] The documentation packet submitted by Bradburn was later marked as Exhibit A and has been added to the record as evidence. [3] Utah Construction Company v. Berg et al, 68 Ariz. 285, 205 P.2d 367 (1949). [4] Smith v. Arizona Dept. of Transportation, 146 Ariz. 430, 706 P.2d 756 (App. 1985). [5] Culpepper v. State, 187 Ariz. 431, 437, 930 P.2d 508, 514 (Ct. App. 1996).

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Office of Administrative Hearings 1400 West Washington, Suite 101 Phoenix, Arizona 85007 (602) 542-9826