ALJDEC decisions subject to certification as final

2015A-756-ROC · Registrar of Contractors · 2015-12-01

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: November 17, 2015 APPEARANCES: Russell Sime, president of Southwest Surface Blasting, Inc., appeared on behalf of Complainant. No one appeared on behalf of William Robert Freeman dba Oasis Waterproofing. ADMINISTRATIVE LAW JUDGE: Suzanne Marwil _____________________________________________________________________ FINDINGS OF FACT 1. William Robert Freeman dba Oasis Waterproofing (Respondent) is the holder of License No. 133673 issued by the Registrar of Contractors (Registrar). 2. Southwest Surface Blasting, Inc. (Complainant) filed a Complaint against Respondent with the Registrar alleging that Respondent had failed to pay Complainant the total sum of $1,200.00 for work it had performed to shot blast the floor at the Macy’s Distribution Center on January 7, 2014. 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 20 minute grace period, the Administrative Law Judge conducted the hearing in Respondent’s absence. 5. Russell Sime offered the only testimony in this matter. He indicated that on December 13, 2013, Complainant provided Respondent a proposal to shot blast the floor at the Macy’s Distribution Center, which Respondent accepted. He noted that the work was performed as agreed upon on January 7, 2014, but Respondent failed to pay the invoice. 6. In July 2015, Complainant sent Respondent an invoice containing finance charges on the $1,200.00. On July 22, 2015, Respondent agreed to pay the $1,200.00, but refused to pay any finance charges. See Exhibit A (“I am prepared to pay the invoice total of $1200 but I did not sign any work order or acknowledge any late payment fees. Please advise if you will accept $1200 in full payment and I will submit that immediately.”) No payment was made. 7. Mr. Sime testified that he thought Respondent was not a good contractor and that he thought his conduct reflected poorly on contractors in general. He testified that many years ago Respondent asked him to do a job and then did not pay until just before the scheduled administrative hearing. He asked that Respondent’s license be revoked. 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 $1,200.00 that is owed. 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 $1,200.00 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 William Robert Freeman dba Oasis Waterproofing s License No. 133673 issued by the Registrar until it has provided to the Registrar, and the Registrar has accepted, documents that establish that it has paid Complainant $1,200.00 in certified funds. It is further recommended that when and if the Registrar receives and accepts Respondent’s evidence that it has paid Complainant $1,200.00 in certified funds, the Registrar may close the Complaint in Case No. 2015- 756. 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, December 1, 2015.

/s/ Suzanne Marwil 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