ALJDEC decisions subject to certification as final

2016A-1432-ROC · Registrar of Contractors · 2016-08-10

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: July 21, 2016 APPEARANCES: Gary Schneider, Qualifying Party and Owner, appeared on behalf of Complainant King Insulation of Arizona, LLC, doing business as King Insulation. Douglas Green, Qualifying Party and Owner, appeared on behalf of Respondent Brazen Builders, Inc. ADMINISTRATIVE LAW JUDGE: Tammy L. Eigenheer _____________________________________________________________________ FINDINGS OF FACT 1. Respondent Brazen Builders, Inc. (Respondent) is the holder of License Nos. 227833 and 227834 issued by the Registrar of Contractors (Registrar). 2. On or about May 2, 2016, Complainant King Insulation of Arizona, LLC (Complainant) filed a Complaint against Respondent with the Registrar alleging that Respondent had failed to pay Complainant the sum of $1926.35 for insulation on a drive through coffee shop 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). 4. Gary Schneider, Complainant’s Owner and Qualifying Party, testified that the total due to Complainant was $1926.35. Mr. Schneider stated that Complainant had made numerous attempts to collect the payment due, including an invoice dated February 12, 2016, but Respondent failed to make the required payment under the contract. 5. Douglas Green, Respondent’s Owner and Qualifying Party, acknowledged Respondent owed the money, but testified that Respondent had not been paid sufficiently on the project to pay Complainant. Mr. Green stated that the project manager underbid the project by approximately $30,000.00, and caused financial hardship to Respondent. Mr. Green also stated that Respondent had not been paid approximately $32,000.00 of the total contract price of $242,000.00 on the project and Respondent still owed an unknown amount to the roofing subcontractor and $4300.00 for stainless steel work. 6. Respondent did not provide documentation to establish that it lacked the capacity to pay the amount Complainant asserted was due. 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 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.

4. The evidence established that Respondent owed a total of $1926.35 for insulation. 5. Respondent failed to establish by a preponderance of the evidence that it lacked the ability to pay Complainant for the work performed or that it had not been paid sufficient monies on the project to pay Complainant. 6. Therefore, Complainant established that Respondent violated A.R.S. § 32-1154(A)(10) by failing to pay Complainant $1926.35 for services or materials 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 Brazen Builders, Inc.’s License Nos. 227833 and 227834 issued by the Registrar until it has provided to the Registrar, and the Registrar has accepted, documents that establish that it has paid Complainant $1926.35 in certified funds. It is further recommended that when and if the Registrar receives and accepts Respondent’s evidence that it has paid Complainant $1926.35 in certified funds, the Registrar may close the Complaint in Case No. 2016- 1432. 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, August 10, 2016.

/s/ Tammy L. Eigenheer 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