ALJDEC decisions subject to certification as final

2016A-1121-ROC · Registrar of Contractors · 2016-08-08

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: July 18, 2016, at 1:00 p.m.; the record was held open until August 1, 2016, to allow the parties to attempt to resolve their dispute. APPEARANCES: Fairbank’s Contracting and Development, LLC (“Complainant”) appeared through Martin Fairbank, its qualifying party/member; P L Miller Electric Incorporated (“Respondent”) appeared through Patrick Miller, its qualifying party/officer. ADMINISTRATIVE LAW JUDGE: Diane Mihalsky _____________________________________________________________________

FINDINGS OF FACT On or about March 18, 1991, the Arizona Registrar of Contractors (“the Registrar”) issued License No. C-11.089290-C for commercial electrical contracting to Respondent. On or about February 15, 2012, the Registrar issued License No. B-1.276940- C for general commercial contracting to Complainant. On April 5, 2016, Complainant filed a complaint with the Registrar against Respondent alleging that Complainant had paid $36,937.17 to Respondent’s supplier Esso Electric (“Esso”) to avoid having it file a lien for materials that Respondent had used to perform its subcontract with Complainant on a large commercial job and that Respondent still owed $19,554.55 for the materials. On or about April 13, 2016, the Registrar issued a Citation for Alleged Violation of A.R.S. § 32-1154(A)(10) against Respondent’s license. Respondent filed a written answer to the Citation, acknowledging that it had agreed to repay Complainant for the monies paid to Esso but that it was unable to fully repay Complainant because although Respondent had submitted bids on projects, Complainant had not awarded sufficient subcontracts to Respondent to allow it to repay the debt. The Registrar referred the matter to the Office of Administrative Hearings, an independent agency, for an evidentiary hearing. A hearing was held on July 18, 2016. Complainant’s qualifying party/member and Respondent’s qualifying party/officer both testified. Complainant presented credible evidence that Respondent still owed $16,657.75 of the monies that Complainant paid to Esso to resolve Respondent’s debt for electrical supplies, not including interest or penalties. After the hearing, Respondent made a settlement offer, but it was not acceptable to Complainant. Administrative notice is taken of the Registrar’s public website, which shows that Respondent’s license is current and in good standing. This is apparently the only complaint pending against the license. CONCLUSIONS OF LAW 1. This matter lies within the Registrar’s jurisdiction.[1] 2. Complainant bears the burden of proof to establish cause to revoke, suspend, or otherwise penalize Respondent’s contractor’s license by a preponderance of the evidence.[2] “A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.”[3] 3. Complainant established that Respondent violated A.R.S. § 32-1154(A)(10)[4] by failing to pay Complainant $16,657.75 for materials that Respondent used in its contracting business. RECOMMENDED ORDER Based on the foregoing, it is recommended that on the effective date of the final order in this matter, Respondent P L Miller Electric Incorporated’s License No. C-11.089290-C shall be suspended until Respondent provides written proof to the Registrar that it has paid $16,657.75 in certified monies to Complainant Fairbank's Contracting and Development LLC or has otherwise resolved Complainant’s complaint for nonpayment to its satisfaction. It is further recommended that if on or before the effective date of the final order, the Registrar receives satisfactory proof from Respondent that it has paid $16,657.75 in certified monies to Complainant Fairbank's Contracting and Development LLC or has otherwise resolved Complainant’s complaint to its satisfaction, the Registrar shall close the complaint in Case No. 2016-1121. In the event of certification of the Administrative Law Judge Decision by the Director of the Office of Administrative Hearings, the effective date of the Order will be five days from the date of that certification. Done this day, August 8, 2016.

/s/ Diane Mihalsky Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director Registrar of Contractors ----------------------- [1] See 32-1101 et seq. [2] See A.R.S. § 41-1092.07(G)(2); A.A.C. R2-19-119; see also Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952). [3] Morris K. Udall, Arizona Law of Evidence § 5 (1960).

[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.”

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