ALJDEC decisions subject to certification as final

2015A-4556-ROC · Registrar of Contractors · 2016-03-01

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: February 16, 2016, at 8:00 a.m. APPEARANCES: Intense Remodel, LLC (hereinafter “Complainant”) appeared through its owner, Shane Culvert (hereinafter “Mr. Culvert”). Restore 1 Inc., (hereinafter “Respondent”) appeared through its vice- president Melanie Strachan (hereinafter “Ms. Strachan”). ADMINISTRATIVE LAW JUDGE: M. Douglas _____________________________________________________________________ FINDINGS OF FACT 1. Respondent is the holder of License No. KB-1.282399-D issued by the Registrar of Contractors (Registrar). Respondent’s License was current on March 1, 2016. 2. On or about October 29, 2015, Complainant filed a Complaint against Respondent with the Registrar alleging that Respondent had failed to pay Complainant for the performance of construction work that Complainant performed for Respondent at an apartment complex located at 2450 W. Pecos Rd., Chandler, Arizona (hereinafter “construction site”). 3. The parties were unable to resolve their differences, and Complainant requested an administrative hearing. On November 18, 2015, the Registrar issued a formal Citation charging Respondent with a possible violation of A.R.S. § 32-1154(A)(10). 4. Respondent’s Answer to the Citation and Complaint provides, in relevant part, as follows: We owed Intense Remodel $7500. During the last 60 days, we have paid half of this debt to Intense Remodel. We will pay the balance no later than January 30, 2016.

5. Mr. Culvert testified that Complainant had performed construction work at the construction site pursuant to its agreement with Respondent. Mr. Culvert stated that the owner of the construction site had paid the Respondent for the work that Complainant had completed at the construction site. Mr. Culvert said that Respondent had failed to pay the Complainant for its completed construction work despite the fact that Respondent had been paid for the work performed by Complainant. Mr. Culvert said that Complainant had repeatedly invoiced Respondent for the unpaid amount and that Respondent had repeatedly failed to pay Complainant for its completed construction work. Mr. Culvert acknowledged that the Respondent had made some payments to Complainant. Mr. Culvert said that Respondent now owed the Complainant the sum of $3,550.00 for the construction work that Complainant completed at the construction site. 6. Mr. Culvert’s testimony is found to be credible. 7. Ms. Strachan acknowledged that Respondent owed the sum of $3,550.00 to the Complainant. Ms. Strachan did not dispute that Respondent had been paid for Complainant’s completed construction work by the owner of the construction site. Ms. Strachan stated that the Respondent would like to pay Complainant but did not have the money to do so. Ms. Strachan said that Respondent had been the victim of embezzlement by an employee, had not been paid over $90,000.00 for one construction project, and that Respondent was currently involved in litigation regarding Respondent’s attempt to collect over $140,000.00 for another construction project. 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 owes the Complainant the sum of $3,550.00 for work that Complainant performed for the Respondent at the construction site.

5. The evidence established that Respondent has received sufficient monies from the owner of the construction site as payment for the construction work that was performed by Complainant that Respondent could have paid Complainant for its construction work. 6. Therefore, Complainant established that Respondent violated A.R.S. § 32-1154(A)(10) by failing to pay Complainant $3,550.00 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 suspend Respondent’s License KB-1282399-D issued by the Registrar until Respondent has provided to the Registrar, and the Registrar has accepted, documents that establish that Respondent has paid Complainant $3,550.00 in certified funds. It is further recommended that when and if the Registrar receives and accepts Respondent’s evidence that it has paid Complainant $3,550.00 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, March 1, 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