ALJDEC decisions subject to certification as final

2018A-04914-ROC · Registrar of Contractors · 2019-01-25

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: January 25, 2019 APPEARANCES: Marie Corkery, Owner, appeared on behalf of Complainant Engrained Cabinetry and Countertops LLC. Respondent F H B Flagstaff Home Builder Inc. did not appear. ADMINISTRATIVE LAW JUDGE: Tammy L. Eigenheer _____________________________________________________________________ FINDINGS OF FACT 1. F H B Flagstaff Home Builder Inc. (Respondent) is the holder of License No. 214887 issued by the Registrar of Contractors (Registrar). 2. On or about October 16, 2018, Engrained Cabinetry and Countertops LLC (Complainant) filed a Complaint against Respondent with the Registrar alleging that Respondent had failed to pay Complainant the sum of $1,000.00 for work performed. 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. The Registrar issued a Notice of Hearing setting a hearing at 10:00 a.m. on January 25, 2019. The Registrar mailed a copy of the Notice of Hearing to Respondent at its address of record and to Respondent’s attorney and emailed a copy to Respondent and Respondent’s attorney at the email addresses on record. 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.” 5. On or about December 5, 2018, Respondent’s counsel filed a Notice of Withdrawal with the Office of Administrative Hearings. 6. Respondent did not request to appear telephonically and did not request that the hearing be continued. Although the start of the hearing was delayed 20 minutes, Respondent did not appear through an authorized member, employee, or attorney. Consequently, Respondent did not present any evidence to defend its license. 7. Ms. Corkery testified that the total due to Complainant was $1000.00. Ms. Corkery indicated that, as of February 2018, Complainant had completed cabinets and countertop work on a project for Respondent. On or about February 2, 2018, Complainant issued an invoice to Respondent indicating the total of the project was $12,692.72 and a total of $11,692.72 had been paid, leaving a balance due of $1,000.00. Ms. Corkery stated that Respondent was paid in full for the project from the homeowner. CONCLUSIONS OF LAW 1. The copies of the Notice of Hearing that the Registrar mailed and emailed to Respondent at its address and email address of record were reasonable and Respondent is deemed to have received notice of the hearing. A.R.S. §§ 41-1092.04 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 a 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.

5. The evidence established that Respondent owed Complainant a total of $1,000.00 for work performed. 6. Therefore, Complainant established that Respondent violated A.R.S. § 32-1154(A)(10) by failing to pay Complainant $1,000.00 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 F H B Flagstaff Home Builder Inc.’s License No: 214887 issued by the Registrar until it has provided to the Registrar, and the Registrar has accepted, documents that establish that it has paid Complainant $1,000.00 in certified funds. It is further recommended that when and if the Registrar receives and accepts Respondent’s evidence that it has paid Complainant $1,000.00 in certified funds, the Registrar may close the Complaint in Case No. 2018- 04914. 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, January 25, 2019.

/s/ Tammy L. Eigenheer Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director Registrar of Contractors -----------------------

Office of Administrative Hearings 1740 West Adams Street, Lower Level Phoenix, Arizona 85007 (602) 542-9826