ALJDEC decisions subject to certification as final

2015A-2657-ROC · Registrar of Contractors · 2016-02-29

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: February 26, 2016, at 8:00 a.m. APPEARANCES: Basic Drilling Company (hereinafter “Complainant”) appeared through its authorized employee, Jacqueline Alexander. No one appeared on behalf of Western Building Concepts Inc., (hereinafter “Respondent”). ADMINISTRATIVE LAW JUDGE: M. Douglas _____________________________________________________________________ FINDINGS OF FACT 1. Respondent is the holder of License No. KB-1.150247-D issued by the Registrar of Contractors (Registrar). Respondent’s License was suspended on November 4, 2014. 2. Complainant filed a Complaint against Respondent with the Registrar alleging that Respondent had failed to pay Complainant the total sum of $5,922.13 for the installation of a septic system at 4101 E. dynamite Blvd., Cave Creek, Arizona (hereinafter “residence”). 3. The parties were unable to resolve their differences, and Complainant requested an administrative hearing. The Registrar then issued a formal Citation charging Respondent with a possible violation of A.R.S. § 32-1154(A)(10). 4. Respondent failed to appear at the time scheduled for hearing and did not request to appear telephonically. After the expiration of a 15 minute grace period, the Administrative Law Judge conducted the hearing in Respondent’s absence. 5. Complainant installed the septic system at the residence pursuant to the parties’ written agreement which required Respondent to pay the sum of $5,922.13 for the completed septic system. Although the septic system was installed in a workmanlike manner Respondent failed to pay Complainant for the installation of the septic system despite repeated demands that it do so. 6. Complainant asserted that it was entitled to interest at .015% per month on the unpaid balance resulting in an additional amount of $1,332.48 due to the Complainant. Complainant’s claim for interest on the unpaid balance does not directly relate to materials or services rendered in connection with the licensee’s operations as a licensed contractor. 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. A.R.S. § 32-1154(A)(10) 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.

4. The evidence established Respondent had not made any payment toward the original contract total of $5,922.13. 5. Respondent failed to establish that it lacked the ability to pay Complainant for the work performed. 6. Therefore, Complainant established that Respondent violated A.R.S. § 32-1154(A)(10) by failing to pay Complainant $5,922.13 for services rendered in connection with Respondent’s contracting business. 7. Based upon Respondent’s violation of the provisions of A.R.S. § 32- 1154(A)(10), grounds exist to impose discipline against Respondent’s license. RECOMMENDed order Based on the foregoing, it is recommended that the Registrar Respondent’s License KB-1.150247-D issued by the Registrar unless Respondent has provided to the Registrar, and the Registrar has accepted, documents that establish that Respondent paid Complainant $5,922.13 in certified funds. It is further recommended that when and if the Registrar receives and accepts Respondent’s evidence that it has paid Complainant $5,922.13 in certified funds, the Registrar may close the Complaint in this matter. 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 5 days from the date of the certification. Done this day, February 29, 2016. /s/ M. Douglas Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director Registrar of Contractors -----------------------

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