ALJDEC decisions subject to certification as final

2017A-1383-NPC-ROC · Registrar of Contractors · 2017-08-08

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Mark's Demolition and Excavating Inc.,

COMPLAINANT,

v.

Restore 1 Inc.,

License No. KB-1.282399-D,

RESPONDENT.

No. 2017A-1383-NPC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: July 20, 2017, at 8:30 a.m.

APPEARANCES: Mark’s Demolition and Excavating Inc. (“Complainant”) was represented by Edward J. Marko, Esq., Marko Law PLLC; Restore 1 Inc. (“Respondent”) appeared through its employee, Jack Hanks.

ADMINISTRATIVE LAW JUDGE: Diane Mihalsky

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FINDINGS OF FACT

On or about January 10, 2013, the Arizona Registrar of Contractors (“the Registrar”) issued License No. KB-1.282399-D for dual building contracting to Respondent.

On or about June 25, 2013, the Registrar issued License No. KB-2.285712-D for dual residential and small commercial contracting to Complainant.

On or about March 13, 2017, Complainant filed a complaint with the Registrar alleging that Respondent had only paid Complainant $20,250.00 on a $67,695.00 contract for its work on subcontracts at two different locations.

On or about April 24, 2017, the Registrar issued a Citation for Alleged Violation of A.R.S. § 32-1154(A)(10) against Respondent.

Respondent’s representative Jack Hanks filed a timely written answer to the Citation, alleging that Respondent had made two payments on its account since Complainant filed the complaint and stating that “[w]e have every intention of making monthly payments to [Complainant].”

The Registrar referred the matter to the Office of Administrative Hearings, an independent state agency, for an evidentiary hearing.

A hearing was held on July 20, 2017. Complainant appeared through its attorney and qualifying party/officer, Donald Mark Haight. Respondent appeared through Mr. Hanks.

The parties agreed that Respondent had made two payments to Respondent. Mr. Hanks acknowledged that Respondent owed Complainant $44,695.00 for its work under the parties’ subcontracts.

Mr. Hanks acknowledged that Respondent had been paid by the property owner or general contractor on the two jobs.

Because Mr. Hanks stated that Respondent still wanted to work with Complainant to pay its debt, at Complainant’s attorney’s request, the Administrative Law Judge agreed to hold her decision until the last day allowed under A.R.S. § 41-1092.08(A) to transmit the decision. To date, Complainant has not informed the Office of Administrative Hearings that Respondent had resolved the complaint to Complainant’s satisfaction.

Pursuant to A.A.C. R4-9-117, administrative notice is taken of Respondent’s prior disciplinary history as shown on the Registrar’s public website on this date. Between December 12, 2016, and July 7, 2017, the Registrar imposed four finite suspensions on Respondent’s license until it complied with the final order entered in four separate unrelated cases. Ten cases had been closed as resolved/settled/withdrawn and five complaints, including the one at issue, were pending against Respondent’s license. On July 28, 2017, the Registrar summarily suspended Respondent’s license and it has not been reinstated as of this date.

CONCLUSIONS OF LAW

The suspended status of Respondent’s license does not deprive Complainant of its right to prosecute its complaint against Respondent or prevent the Registrar from determining the merits of Complainant’s complaint. This dispute lies within the Registrar’s jurisdiction to resolve.

Complainant bears the burden of proof to establish cause to discipline Respondent’s contractor’s license by a preponderance of the evidence.

“A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.”

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 . . . .”

Respondent’s representative acknowledged that it owed Complainant $44,695.00 for services that Complainant rendered in connection with Respondent’s contracting operations. Complainant therefore established cause to suspend or revoke Respondent’s license under A.R.S. § 32-1154(A)(10).

RECOMMENDED ORDER

Based on the foregoing, it is recommended that on the effective date of the final order in this matter, Respondent Restore 1 Inc.’s contractor’s License No. KB-1.282399-D shall be revoked until Respondent furnishes satisfactory written proof to the Registrar that it has paid Complainant Mark’s Demolition & Excavating Inc. $44,695.00 by cashiers or certified check.

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.

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Done this day, August 8, 2017.

/s/ Diane Mihalsky

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors