ALJDEC

99F-1656-ROC · Registrar of Contractors · 1999-07-30

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: July 30, 1999 at 9:00 a.m. APPEARANCES: Complainant appeared through its Credit Manager, Judy Wenzlick; Respondent did not appear. ADMINISTRATIVE LAW JUDGE: Diane Mihalsky _____________________________________________________________________

Based upon the entire record in the matter, the undersigned makes the following Findings of Fact, Conclusions of Law and Recommended Order with respect to Complainant’s complaint against Respondent for nonpayment of monies due under an open account. FINDINGS OF FACT The Registrar of Contractors issued License No. 069728, Class L-42 to Respondent, a corporation, on November 2, 1987. In October 1995, Respondent’s president and qualifying party Joe Ramirez submitted on behalf of Respondent an “Application For Open Account/Credit” to Complainant’s predecessor in interest, Southwest Roofing Supply, to purchase materials to be used in connection with Respondent’s operations as a licensed roofing contractor. Complainant granted the application. Respondent subsequently purchased substantial roofing supplies on the open account but failed to make payments. By November 20, 1998, when Complainant made a complaint to the Registrar, Respondent owed Complainant $77,958.28. Although Respondent subsequently made several payments, it failed to settle its account with Complainant. Complainant therefore requested a hearing, which was scheduled in due course. Both parties attended the hearing originally scheduled on May 17, 1999 to resolve Complainant’s complaint. As noted in the undersigned’s order that same date, Respondent did not dispute that it owed Complainant $52,542.91 or that the materials purchased had been used in its roofing contracting business but instead requested that the matter be continued to allow it to negotiate a settlement with Complainant. Because Complainant did not wish to put Respondent out of business but only wanted to get paid, it agreed to a continuance. The undersigned’s May 17, 1999 order also provided both parties with advance notice of a hearing scheduled to begin at 9:00 a.m. on July 30, 1999. Although Respondent on May 17, 1999 had promised to pay $10,000.00 on its account with Complainant, it only gave Complainant two $2,000.00 checks, one of which cleared and one of which was returned for insufficient funds. As of the date of the July 30, 1999 hearing, Respondent still owed $50,542.91 on its open account with Complainant. Although the beginning of the July 30, 1999 hearing was delayed twenty minutes to allow Respondent additional travel time, it neither appeared, personally or through an authorized representative, contacted the Office of Administrative Hearings to request a continuance, nor presented any evidence at the hearing to defend against Complainant’s complaint to the Registrar of Contractors for failure to pay on the open account. The Citation and Complaint issued by the Registrar advised Respondent that, if it were found in violation of any contracting law, its prior disciplinary record of final Registrar of Contractors’ orders might be considered in mitigation or aggravation. Accordingly, notice is taken of official records of the Registrar of Contractors, which reveal that, if the Registrar accepts this recommended decision, it will be the only final agency order against Respondent on the Registrar’s current record. Therefore, Respondent’s prior record is deemed to be excellent and, thus, is viewed as a matter in mitigation for any disciplinary penalties to be imposed as a direct result of this case. CONCLUSIONS OF LAW In this administrative proceeding, Complainant bears the burden of proof and must establish statutory violations by a preponderance of the evidence. See A.A.C. R2-19-119; see also Culpepper v. State, 187 Ariz. 431, 438, 930 P.2d 508, 515 (App. 1996). “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). A preponderance of the evidence is “evidence which is of greater weight or more convincing than evidence which is offered in opposition to it; that is, evidence which as a whole shows that the fact sought to be proved is more probable than not.” Black’s Law Dictionary at page 1064 (6th ed. 1990). Complainant presented evidence at the hearing sufficient to establish that Respondent violated A.R.S. § 32-1154(A)(7)[1] and (11)[2] in failing to pay $52,542.91 on its open account with Complainant. Although Complainant may be able to recover additional amounts for interest, attorneys’ fees, and other consequential damages in a breach-of- contract action brought in a court having appropriate general civil jurisdiction, the legislature has empowered neither the Office of Administrative Hearings or the Registrar of Contractors to award such damages. This recommended decision is not intended to foreclose Complainant from obtaining additional relief in a judicial forum, however. RECOMMENDED ORDER Based on the foregoing, it is recommended that the Registrar of Contractors suspend Respondent’s License No. 069728, Class L-42 on the effective date of his order, thirty-five days after the date of mailing. It is further recommended that, if Respondent provides written proof that it has paid Complainant $50,542.91 or otherwise satisfied Complainant’s claim against it for purchases on its open account on or before the effective date of the Registrar’s order, Respondent’s license shall not be suspended and the entire Citation and Complaint in Case No. 99- 1656 shall be closed. Done this day, July 30, 1999.

______________________________________ Diane Mihalsky Administrative Law Judge

Original transmitted by mail this ____ day of August, 1999, to:

Michael P. Goldwater Registrar of Contractors ATTN: Joyce Armijo 800 West Washington, 6th Floor Phoenix, AZ 85007

By ___________________________

----------------------- [1] 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.”

[2] This statutory subsection 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 . . . .”

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Office of Administrative Hearings 1400 West Washington, Suite 101 Phoenix, Arizona 85007 (602) 542-9826