ALJDEC decisions subject to certification as final

2016A-2813-ROC · Registrar of Contractors · 2017-01-06

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Steel Placers LLC,

COMPLAINANT,

v.

Lorraine Brown LLC dba,

Superior Pool Builders,

License No: 294215

RESPONDENT.

No. 2016A-2813-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: December 19, 2016

APPEARANCES: Shane W. Howell for Steel Placers, LLC

ADMINISTRATIVE LAW JUDGE: Roger A. Geddes

_____________________________________________________________________

FINDINGS OF FACT

1. Lorraine Brown, LLC, dba, Superior Pool Builders (Respondent), is the holder of License Number 294215 issued by the Registrar of Contractors (Registrar).

2. On or about August 2, 2016, Steel Placers, LLC (Complainant), filed a Complaint against Respondent with the Registrar alleging that Respondent owed Complainant the sum of $6,615.00, representing the sum Complainant was owed for construction materials and services provided by Complainant to Respondent relating to swimming pool construction.

3. The Registrar on August 31, 2016, 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 December 19, 2016, at 1:00 P.M. The Registrar mailed a copy of the Notice of Hearing to Respondent on or about October 27, 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 December 19 2016, at 1:00 P.M. Complainant presented the testimony of Shane W. Howell.

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. Howell testified that Complainant provided construction materials and services to Respondent in connection with the Respondent’s operations as a contractor for which Respondent failed to pay the amount of $6,615.00.

CONCLUSIONS OF LAW

1. The copy 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 the amount of $6,615.00 to its Complainant 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, Lorraine Brown, LLC, dba, Superior Pool Builders, License Number 294215 is revoked until the Registrar receives and accepts written verification that Lorraine Brown, LLC, dba, Superior Pool Builders, has paid $6,615.00 to Steel Placers, LLC, 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 five days from the date of the certification.

Done this day, January 6, 2017.

/s/ Roger Geddes

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors