ALJDEC decisions subject to certification as final

2019A-00962-NPC-ROC · Registrar of Contractors · 2019-06-12

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: June 11, 2019 APPEARANCES: Sean McCardell, Complainant’s Managing Partner, Shawn McCardell, Complainant’s Business Manager. ADMINISTRATIVE LAW JUDGE: Randolph D. Wolfson, Esq. _____________________________________________________________________ FINDINGS OF FACT

1. On, November 9, 2010, the Arizona Registrar of Contractors (“the Registrar”) first issued License No. ROC 281541 to Dublin Construction Services, LLC [hereinafter, “DUBLIN”], a General Dual KB-2 Dual Residential and Small Commercial license [hereinafter, “DUBLIN”][1] Christopher Caleb Johnson is listed with the Registrar as the licensee’s Qualifying Party. Lynn Johnson is also listed on the license as a member of the LLC. 2. At all times relevant to these proceedings, DUBLIN’s current address of record with the Registrar is and has been 460 E Williams Field Road, Gilbert, AZ 85295-5235[2] 3. On July 11, 2016 , the Registrar issued License Number ROC 309739, a Class CR-69 Asphalt Paving license to Complainant McCardell Industries LLC, d/b/a: Patterson Paving Company Inc., [hereinafter, “PP”].[3] Sean Edward McCardell (Member) is listed as the Qualifying Party and Shawn Keaney is listed on the license as a Member. 4. On February 26, 2019, PP filed a Written Complaint with the Arizona Registrar of Contractors.[4] The Written Complaint charges DUBLIN with the commission of an act or acts that would, if proven, be cause for the suspension or revocation of DUBLIN’s license under A.R.S.§1154(A)(10). 5. PP’s Complaint alleges that DUBLIN owes PP a total remaining balance on PP’s Invoices to DUBLIN (excluding interest and penalties) of Five Thousand and Five Dollars even ($9.005.00)[5] It is alleged in the Complainant that the amount is past due and owing. 6. On March 13, 2009, the Registrar delivered the Citation and Complaint against DUBLIN’s license charging a violation of A.R.S. § 32- 1154(A)(10).[6] The Registrar mailed a copy of the Citation and Complaint to DUBLIN at its address of record provided by DUBLIN to the Registrar of 460 E Williams Field Road, Gilbert, AZ 85295-5235 and to [email redacted]. Pursuant to DUBLIN’s signed U.S. Postal Service Return Receipt, the Complaint and Citation were delivered on March 13, 2019[7] 7. The Registrar referred the matter to the Office of Administrative Hearings, an independent agency, to schedule and to conduct a fair hearing.

8. On April 17, 2019, the Registrar issued a Notice of Hearing on PP’s Complaint. The Notice of Hearing was mailed and e-mailed to DUBLIN at its address of record with the Registrar of 460 E Williams Field Road, Gilbert, AZ 85295-5235 and to [email redacted].[8] 9. A hearing was held on June 11, 2019. 10. Although the beginning of the duly noticed hearing was delayed twenty- five minutes to allow DUBLIN reasonable additional travel time as might be necessary, DUBLIN did not appear through an authorized member, employee, or attorney and did not contact the Office of Administrative Hearings to request a continuance or that the time for the hearing be further delayed. 11. DUBLIN presented no evidence at the hearing to defend its license. 12. PP presented the testimony of its Managing Member Sean McCardell and submitted the exhibits that were attached to its Complaint. PP submitted its unpaid Invoices for the DUBLIN for the completed work performed PP. Mr. McCardell testified that PP is a licensed Arizona contractor. He stated that his company completed the DUBLIN work for which it was contracted. When the work was completed, PP provided DUBLIN with Invoices to DUBLIN for the contracted amount. A balance of $9,005.00 has not been paid. Mr. McCardell testified that, although the amounts had been long overdue for payment pursuant to the terms of the parties’ contract, DUBLIN has failed and refused payment of balance due and owing. 13. A review of DUBLIN’s disciplinary record with the Registrar discloses that DUBLIN’s contractors license has not been subject to discipline. 14. That DUBLIN failed to appear at hearing in this matter is an aggravating circumstance. There are no mitigating circumstances presented.

CONCLUSIONS OF LAW This matter lies within the Registrar’s jurisdiction.[9] The Notice of The Hearing that the Registrar mailed to DUBLIN at its address of record was reasonable and DUBLIN is deemed to have received the Notice of Hearing. PP bears the burden of proof and must establish DUBLIN’s contracting law violations by a preponderance of the evidence.[10] DUBLIN bears the burden to establish affirmative defenses by the same evidentiary standard.[11] “A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.”[12] A preponderance of the evidence is “[t]he greater weight of the evidence, not necessarily established by the greater number of witnesses testifying to a fact but by evidence that has the most convincing force; superior evidentiary weight that, though not sufficient to free the mind wholly from all reasonable doubt, is still sufficient to incline a fair and impartial mind to one side of the issue rather than the other.”[13]

A.R.S. § 32-1154(A)(11) specifically 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 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.”

A general contractor’s inability to pay and nonpayment by the owner on a project are affirmative defenses that the general contractor DUBLIN bears the burden to prove in a subcontractor’s administrative complaint under A.R.S. § 32-1154(A)(11). DUBLIN has never disputed that it owes PP for its work pursuant to the Parties’ subcontracts. DUBLIN did not present any evidence to establish the affirmative defenses of its inability to pay or of the owner’s failure to pay. PP, therefore, has borne its burden to establish that DUBLIN violated A.R.S. § 32-1154(A) (11)[14] by failing to pay PP $9005.00, the total of the invoices’ unpaid balance as set forth hereinabove. If DUBLIN fails to comply with any condition that the Registrar sees fit to include in his final Decision and Order, including but not limited a to conditional suspension in this matter, its suspended license will be revoked. If the Registrar accepts this recommendation and, as a result of DUBLIN’s failure to comply with the Registrar’s final decision in this matter, the Registrar revokes DUBLIN’s license, in due course the revocation will lead to revocation of any other license on which DUBLIN or and any person or entity that are listed of record with the Registrar on the license[15] and will prevent any new license from being issued to them or to any entity for which they are members, officers, or qualifying parties.[16] RECOMMENDED ORDER Based on the contracting law violation proven in this matter, IT IS RECOMMENDED that, on the effective date of the final order in this matter, the Registrar of Contractors suspend DUBLIN Specialty Contractors LLC, License Number 281541 ROC previously issued to DUBLIN. IT IS FURTHER RECOMMENDED that, if on or before the effective date of the order, the Registrar receives proof from DUBLIN that it has paid Nine Thousand and Five Dollars ($9005.00) to Complainant McCardell Industries LLC, d/b/a: Patterson Paving, by cashier’s or certified check, then the Registrar should not suspend DUBLIN’s license but, instead, should close the complaint in Case No. 2019A-00962-NPC-ROC. FURTHER IT IS RECOMMENDED that if DUBLIN fails on or before the effective date of the order to provide sufficient proof to the Registrar that DUBLIN has paid Nine Thousand and Five Dollars ($9005.00) to Complainant McCardell Industries LLC, d/b/a: Patterson Paving, by cashier’s or certified check then, Dublin Construction Services LLC’s ROC License: ROC 281541 is revoked without further order or action by the Registrar.

If the Director of the Office of Administrative Hearings certifies this Administrative Law Judge Decision, the effective date of the order will be forty days from the date of certification. Done this day, June 12, 2019.

/s/Randolph D. Wolfson Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director Registrar of Contractors ----------------------- [1] 1 Administrative Judicial Notice is taken of the entirety of the Registrar’s physical and electronic records in this matter, including, but not limited to information displayed on the Registrar’s Public Access Website [2] See, ROC Public Access Website for DUBLIN’s license number ROC 315229 [3] See, ROC Public Access Website for MI’s license number ROC *** [4] Exhibit C-2 [DUBLIN’S proposals to PP. [5] Exhibit C-3, PP’s Invoices to DUBLIN. [6] Agency Record, “Citation,” pages 45-51. [7] Agency Record, Page 4. [8] Several e-mails were exchanged between the parties discussing the Complaint. Such is evidence that the Respondent was receiving mail at its address of record. [9] See §32-1101 et seq. [10] See A.R.S. § 41-1092.07(G)(2); A.A.C. R2-19-119(A) and (B)(1); see also Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952). [11] See A.A.C. R2-19-119(B)(2). [12] Morris K. Udall, ARIZONA LAW OF EVIDENCE § 5 (1960). [13] BLACK’S LAW DICTIONARY at page 1220 (8th ed. 1999). [14] This statutory subsection includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license “[t]he doing of a wrongful or fraudulent act by the licensee as a contractor resulting in another person being substantially injured.” [15] See A.R.S. § 32-1154(A)(21). [16] See A.R.S. § 32-1122(E).

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