ALJDEC decisions subject to certification as final

2015A-4653-ROC · Registrar of Contractors · 2016-03-16

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: March 14, 2016, at 8:00 a.m. APPEARANCES: Diversified Roofing Corporation appeared through its authorized employee, Lorena Rodriguez (hereinafter “Ms. Rodriguez”). M A Carlson Construction LLC dba Carlson Solar Technologies (hereinafter “Respondent”) failed to appear. ADMINISTRATIVE LAW JUDGE: M. Douglas _____________________________________________________________________ 1. Respondent is the holder of License Nos. KB-1.266357-D, C-11.271457-C, and R-11.266358-R issued by the Registrar of Contractors (Registrar). License No. KB-1.266357-D was current on March 16, 2016. License No. C-11.271457-C was on suspended status on March 16, 2016. License No. C-11.271457-C was suspended by the Registrar on February 17, 2015 for lack of bond. License No. R-11.266358-R was on inactive status on March 16, 2016. License No. R-11.266358-R was placed on inactive status on September 2, 2014. 2. Complainant filed a Complaint against Respondent with the Registrar alleging that Respondent had failed to pay Complainant the total sum of $3,051.70 (Contract amount $30,517.00 less amount paid $27,465.30) for the performance of construction work by Complainant at Coulter Buick, 1202 E. Camelback Road, Phoenix, Arizona (hereinafter “construction project”). 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. Ms. Rodriguez testified that Respondent had failed to pay Complainant the retention that was owed to Complainant for its work as a subcontractor for Respondent at the construction project. Ms. Rodriguez stated that Complainant had repeatedly attempted to collect the retention amount that was owed to Complainant and that Respondent had failed to pay Complainant the final amount due to the Complainant.

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(D) provides as follows: The expiration, cancellation, suspension or revocation of a license by operation of law or by decision and order of the registrar or a court of law or the voluntary surrender of a license by a licensee shall not deprive the registrar of jurisdiction to proceed with any investigation of or action or disciplinary proceeding against such licensee, or to render a decision suspending or revoking such a license, or denying the renewal or right of renewal of such license.

4. 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.

5. The evidence established that Respondent had not made any payment toward the final contract balance of $3,051.70 owed to Complainant. 6. Respondent failed to establish that it lacked the ability to pay Complainant for the work performed. 7. Therefore, Complainant established that Respondent violated A.R.S. § 32-1154(A)(10) by failing to pay Complainant $3,051.70 for services rendered in connection with Respondent’s contracting business. 8. 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 revoke Respondent’s License Nos. KB-1.266357-D, C-11.271457-C, and R-11.266358-R issued by the Registrar unless Respondent has provided to the Registrar, and the Registrar has accepted, documents that establish that Respondent paid Complainant $3,051.70 in certified funds. It is further recommended that if the Registrar receives and accepts Respondent’s evidence that it has paid Complainant $3,051.70 in certified funds before the effective date of the Registrar’s Order, 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 16, 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