ALJDEC decisions subject to certification as final

2016A-1133-ROC · Registrar of Contractors · 2016-07-13

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: Wednesday, July 13, 2016 at 8:00 a.m. APPEARANCES: Central Arizona Supply, Inc. (“Complainant”) appeared through its corporate president, Donald Smith; Home Lift Now, LLC (“Respondent”) failed to appear. WITNESS: Mary Smith, corporate bookkeeper ADMINISTRATIVE LAW JUDGE: Linda Marie Brown _____________________________________________________________________

This matter was set by the Registrar of Contractors as a hearing to determine whether Respondent has violated Arizona Revised Statutes (A.R.S.) § 32-1154 (A)(10) [1] (prohibiting failure to pay subcontractors or suppliers under certain circumstances). FINDINGS OF FACT The Arizona Registrar of Contractors (“the Registrar”) issued License No. CR61-302446.D to Respondent. Respondent’s address of record is 5320 East Paradise Lane, Scottsdale, Arizona 85254-1132. Complainant is a material supplier. On or about April 1, 2016, Complainant filed a complaint with the Registrar alleging that Respondent owed Complainant $12,000.03 for building materials that Respondent had purchased on a line of credit Respondent was issued on January 12, 2016, and that Respondent made no payments for materials Invoiced from January 13, 2016 to February 25, 2016. Complainant provided the address of 208 South Country Club Drive, Mesa, Arizona 85210 as the address on the complaint that it filed with the Registrar. On April 8, 2016, Notice of Complaint and a copy of the Complaint were sent to the Respondent at its address of record. On April 15, 2016, the Registrar issued a Citation for Alleged Violation of A.R.S. § 32-154(A)(10) against Respondent. Respondent submitted a timely written answer to the Citation asserting conflicts and delays in payment and that he has entered into a payment plan and was working out a resolution with Complainant. On May 3, 2016, a Request for Hearing was submitted. The Registrar referred the matter to the Office of Administrative Hearings (“OAH”), an independent state agency, for an evidentiary hearing. On May 18, 2016, the Registrar issued a Notice of Hearing, setting a hearing on July 13, 2016, at 8:00 a.m. at the OAH. The Registrar mailed a copy of the Notice of Hearing to Complainant at the address on its complaint and to Respondent at its address of record. Respondent did not appear for the duly noticed hearing but submitted an email on July 11, 2016, stating Home Lift Now, LLC, is no longer in business due to the Registrar summarily suspending his license, and the company has no assets and is completely insolvent. Administrative notice was taken in regards to the email and read into the record. [2] Complainant was provided a copy of the email. Complainant’s presented testimony that a line of credit was issued to Respondent and that Respondent received materials for a total of $12,000.03, and no payments were made.

CONCLUSIONS OF LAW 1. This dispute lies within the Registrar’s jurisdiction to resolve.[3] 2. Because the Notice of Hearing mailed by the Registrar to Respondent’s address of record was reasonable, Respondent is deemed to have received notice of this hearing.[4] 3. The burden of proof at an administrative hearing is generally upon a complainant.[5] Further, the standard of proof at hearing is by preponderance of the evidence.[6] Therefore, Complainant bears the burden of showing, by a preponderance of the evidence, that Respondent has violated the statute(s) cited in the Citation and Complaint.[7] Complainant has met that burden. 4. The Citation and Complaint in this case cites the “no-pay” provision found in Arizona Revised Statutes (A.R.S.) § 32- 1154(A)(10) that prohibits the failure of a licensee to pay monies in excess of $750 “when due for materials or services” when the licensee has the capacity to pay or when the licensee has been paid for the project. 5. Complainant’s presents credible testimony. Respondent’s failure to appear at the duly noticed hearing provides for a default finding that Respondent violated A.R.S. § 32-1154(A)(10). RECOMMENDED ORDER Based on the foregoing, that Respondent’s License No. CR61.302446-D shall be revoked. 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, July 27, 2016.

/s/ Linda Marie Brown Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director Registrar of Contractors ----------------------- [1] 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 . . . .” [2] Administrative Notice is taken of the Registrar’s decision in Case No. 2016-1713 accepting the Administrative Law Judge’s decision to affirm the Registrar’s summary suspension and revoking Respondent’s license for numerous violations of Arizona’s contracting statutes. [3] See A.R.S. § 32-1101 et seq. [4] See A.R.S. §§ 41-1092.04; 41-1092.05(D). [5] Utah Construction Company v. Berg et al, 68 Ariz. 285, 205 P.2d 367 (1949). [6] Smith v. Arizona Dept. of Transportation, 146 Ariz. 430, 706 P.2d 756 (App. 1985). [7] Culpepper v. State, 187 Ariz. 431, 437, 930 P.2d 508, 514 (Ct. App. 1996).

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