ALJDEC decisions subject to certification as final

2015A-4006-ROC · Registrar of Contractors · 2016-08-08

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: July 18, 2016 APPEARANCES: Luis Magana, Owner, appeared on behalf of Complainant Magana Marble and Granite LLC. Respondent Arm & Hammer Framers Inc. did not appear. ADMINISTRATIVE LAW JUDGE: Tammy L. Eigenheer _____________________________________________________________________ FINDINGS OF FACT 1. Arm & Hammer Framers Inc. (Respondent) is the holder of License No. 266432 issued by the Registrar of Contractors (Registrar). 2. On or about September 18, 2015, Magana Marble and Granite LLC (Complainant) filed a Complaint against Respondent with the Registrar alleging that Respondent had failed to pay Complainant the sum of $1960.00 for the installation of kitchen countertops and sink. 3. The parties were unable to resolve their differences, and Complainant requested an administrative hearing. The Registrar then issued a Citation for Alleged Violation of A.R.S. § 32-1154(A)(10). 4. Luis Magana testified that the total due to Complainant was $1960.00. Mr. Magana stated that Respondent gave him a check for $950.00 towards the job, but when Mr. Magana tried to cash the check, the bank informed him that a stop payment order had been placed on the check. 5. Respondent did not request to appear telephonically and did not request that the hearing be continued. Although the start of the hearing was delayed 25 minutes, Respondent did not appear through an authorized member, employee, or attorney. Consequently, Respondent did not present any evidence to defend its license. 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 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.

4. The evidence established that Respondent owed a total of $1960.00 for the installation of kitchen countertops and sink. 5. Respondent failed to establish by a preponderance of the evidence 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 $1960.00 for services or materials 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 suspend Respondent Arm & Hammer Framers Inc.’s License No: 266432 issued by the Registrar until it has provided to the Registrar, and the Registrar has accepted, documents that establish that it has paid Complainant $1960.00 in certified funds. It is further recommended that when and if the Registrar receives and accepts Respondent’s evidence that it has paid Complainant $1960.00 in certified funds, the Registrar may close the Complaint in Case No. 2015- 4006. 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, August 8, 2016.

/s/ Tammy L. Eigenheer 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