ALJDEC decisions subject to certification as final

2015A-4889-ROC · Registrar of Contractors · 2016-03-15

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: March 2, 2016, at 1:00 p.m. APPEARANCES: A All-Rite Floor Covering (hereinafter “Complainant”) appeared through its authorized representative, Dale Knelnhofer (hereinafter “Mr. Knelnhofer”). V B S Construction Inc., dba: V B S Restoration (hereinafter “Respondent”) failed to appear. ADMINISTRATIVE LAW JUDGE: M. Douglas _____________________________________________________________________ FINDINGS OF FACT 1. Respondent is the holder of License Nos. B.074790-R, B-1.130669-C, B- 2.078963-C and R-37.127279-R issued by the Registrar of Contractors (Registrar). Respondent’s License Nos. B.074790-R and B.1.130669-C were current on March 15, 2016. This tribunal could find no information regarding License Nos. B-2.078963-C, and R-37.127279-R on the Arizona Registrar of Contractors’ public website on March 15, 2016. 2. On or about Novembers, 24, 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 a residence located at 18370 W. Paseo Way, Goodyear, Arizona (hereinafter “residence”). 3. The parties were unable to resolve their differences, and Complainant requested an administrative hearing. On December 11, 2015, the Registrar issued a formal Citation charging Respondent with a possible violation of A.R.S. § 32-1154(A)(10).

Hearing Evidence

4. Michael L. Knape (hereinafter “Mr. Knape”) testified that Complainant completed the agreed upon construction work at the residence and that the owner of the residence was satisfied with Complainant’s construction work. Mr. Knape said that despite repeated collection attempts the Respondent has failed to pay the Complainant the balance due under the parties’ construction agreement. 5. Mr. Knape’s testimony is found to be credible. 6. Mr. Knelnhofer testified Complainant had sent the Respondent repeated demand letters to the Respondent with no response from the Respondent. Mr. Knelnhofer said that Respondent owes the Complainant the sum of $6,797.50. Mr. Knelnhofer said that homeowner had paid Respondent for the work that Complainant had performed at the residence. 7. Mr. Knelnhofer’s testimony is found to be credible. 8. Carol Knape (hereinafter “Ms. Knape”) testified that she is an employee of 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(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 $6,797.50 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 $6,797.50 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 Nos. B.074790-R, B-1.130669-C, B-2.078963-C and R- 37.127279-R issued by the Registrar until Respondent has provided to the Registrar, and the Registrar has accepted, documents that establish that Respondent has paid Complainant $6,797.50 in certified funds. It is further recommended that when and if the Registrar receives and accepts Respondent’s evidence that it has paid Complainant $6,797.50 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 15, 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