ALJDEC decisions subject to certification as final

2019A-01313-NPC-ROC · Registrar of Contractors · 2019-06-24

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: June 24, 2019 APPEARANCES: Guy Hodgson, Partner, appeared on behalf of Complainant Arizona General Engineering Contracting Inc. Respondent Concepts To Construction LLC, doing business as Building Concepts did not appear. ADMINISTRATIVE LAW JUDGE: Tammy L. Eigenheer _____________________________________________________________________ FINDINGS OF FACT 1. Concepts To Construction LLC, doing business as Building Concepts (Respondent) is the holder of License No. 182703 issued by the Registrar of Contractors (Registrar). 2. On or about March 13, 2019, Arizona General Engineering Contracting Inc (Complainant) filed a Complaint against Respondent with the Registrar alleging that Respondent had failed to pay Complainant the sum of $11,972.44 for services provided. 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 1:00 p.m. on June 24, 2019. The Registrar mailed copies of the Notice of Hearing to Respondent 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 June 24, 2019. Guy Hodgson testified on behalf of Complainant. 7. Respondent did not request to appear telephonically and did not request that the hearing be continued. Although the start of the hearing was delayed 30 minutes, Respondent did not appear through an authorized member, employee, or attorney. Consequently, Respondent did not present any evidence to defend its license 8. Mr. Hodgson testified that Complainant prepared a bid for the work on the project when requested and the total was $16,088.80 plus $1,383.64 tax for a total cost of $17,472.44. Mr. Hodgson indicated that Respondent made a deposit of $5,500.00 on the project prior to Complainant starting work. Mr. Hodgson acknowledged that Complainant was held up on another job, but stated that Complainant worked on the project for seven straight days including overtime pay for employees and got the job completed. Mr. Hodgson indicated that he was informed a few months later that the remaining payment had not been received. Mr. Hodgson testified that he attempted to contact Respondent numerous times and was initially told that the check was ready, but the Internal Revenue Service had frozen the accounts and then Respondent stopped answering his calls altogether. Mr. Hodgson testified that the total due to Complainant was $11,972.44. 9. Administrative notice is taken of Respondent’s prior License record as reflected on the Registrar’s public website on June 24, 2019. Such prior License record reflects that Respondent’s License No. 182703 was first issued on April 7, 2003 and was suspended on May 31, 2019, for a lack of bond. Such prior License record also reflects there are no other open or prior complaints against Respondent’s license. 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 $11,972.44 for services provided. Therefore, Complainant established that Respondent violated A.R.S. § 32-1154(A)(10) by failing to pay Complainant $11,972.44 for services or materials rendered in connection with Respondent’s contracting business. 5. 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 Concepts To Construction LLC, doing business as Building Concepts’ License No: 182703 issued by the Registrar until it has provided to the Registrar, and the Registrar has accepted, documents that establish that it has paid Complainant $11,972.44 in certified funds. It is further recommended that when and if the Registrar receives and accepts Respondent’s evidence that it has paid Complainant $11,972.44 in certified funds, the Registrar may close the Complaint in Case No. 2019- 01313. 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, June 24, 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