ALJDEC decisions subject to certification as final

2016A-1197-ROC · Registrar of Contractors · 2016-07-29

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: July 11, 2016 APPEARANCES: Eldon Pond, Controller, appeared on behalf of Complainant Ballard Truss, Inc., no appearance by Respondent ADMINISTRATIVE LAW JUDGE: Roger A. Geddes _____________________________________________________________________ FINDINGS OF FACT 1. S W G Builders, LLC, (Respondent), is the holder of License Number 179498 issued by the Registrar of Contractors (Registrar). 2. On or about April 12, 2016, Bruss Truss, Inc. (Complainant), filed a Complaint against Respondent with the Registrar alleging that Respondent owed Complainant the sum of $6,959.00 for the design, building, and delivery of roof trusses for Respondent’s development project. 3. The parties were unable to resolve their differences, and Complainant requested an administrative hearing. The Registrar then issued a Citation for Alleged Violation of A.R.S. § 32-1154(A)(10). The Registrar referred the matter to the Office of Administrative Hearings, an independent state agency, for an evidentiary hearing. 4. The Registrar issued a Notice of Hearing setting a hearing for July 11, 2016, at 10:00 A.M. The Registrar mailed a copy of the Notice of Hearing to Respondent on or about May 16, 2016, at its address of record. 5. The Notice of Hearing informed the parties that “[f]ailure to attend the scheduled hearing is likely to result in an adverse ruling against you.” 6. A hearing was held on July 11, 2016, at 10:00 a.m. Complainant presented the testimony of Eldon Pond, Controller. 7. Although the commencement of the hearing was delayed approximately 15 minutes, Respondent did not appear at any time during the hearing through an authorized member, employee, or attorney. Consequently, Respondent did not present any evidence to defend its license. Respondent further did not request to appear telephonically and did not request that the hearing be continued. 8. Mr. Pond testified that on or about October 12, 2015, Complainant and Respondent entered into a contract that required Complainant to design, build, and deliver roof trusses for Respondent. The contract price was $6,959.00. 9. Mr. Pond further testified that by October 26, 2015, the roof trusses were designed, built, and delivered by Claimant to Respondent and that according to Lew Salvan, an employee of Complainant, the trusses were indeed used in Respondent’s project. 10. Mr. Pond testified that Respondent paid Complainant $3,500.00 on or about May 9, 2016, in the form of a cashier’s check and that Charlie Arnold on behalf of Respondent promised to pay the remaining balance within days. No further payment was received by Complainant. 11. Pursuant to A.A.C. R4-9-117, administrative notice is taken of the Registrar’s public website. The Respondent’s failure to appear at the hearing is considered as a factor in aggravation of any determination of discipline. CONCLUSIONS OF LAW 1. The copies of the Notice of Hearing that the Registrar mailed to Respondent at its address of record was reasonable and Respondent is deemed to have received notice of hearing. A.R.S. §§ 41-1092.4 and 41- 1092.05(D). 2. 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 preponderance of the evidence. See A.A.C. R2-19-119. 3. 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). 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 or agent or official of 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. Emphasis added. 5. In this matter, Respondent failed to pay Complainant the balance due in the amount of $3,459.00 for materials or services rendered in connection with Respondent’s operations as a contractor. 6. Complainant has established that Respondent’s license should be disciplined for a violation of A.R.S. § 32-1154(A)(10). RECOMMENDED ORDER Based on the foregoing, it is recommended that on the effective date of this Order, S W G Builders, LLC’s, (Respondent), License Number 179498 is suspended until the Registrar receives and accepts written verification that S W G Builders, LLC, has paid $3,459.00 to Bruss Truss, Inc., in certified funds. 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 forty days from the date of the certification.

Done this day, July 29, 2016.

/s/ Roger Geddes Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director Registrar of Contractors

Done this day, July 29, 2016.

/s/ Roger Geddes 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