ALJDEC

99F-F0310-ROC · Registrar of Contractors · 2000-01-11

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: January 11, 2000 APPEARANCES: Complainant: Larry Kesserling, Secretary/Treasurer, appeared on behalf of Hawkeye Striping, Inc. Respondent: For Cohen Contracting, Inc. appeared Edward Trybula, Project Manager for the defunct Respondent corporation, holding the same position with CCG Construction, LLC. ADMINISTRATIVE LAW JUDGE: Gary B. Strickland _____________________________________________________________________ Evidence and testimony having been received at the hearing and based upon the entire record, the undersigned Administrative Law Judge issues the following Findings of Fact, Conclusions of Law and Recommended Order.

FINDINGS OF FACT

1. Respondent is a company formerly doing business in the state of Arizona as Cohen Contracting Corporation, Inc., holding a Class B-01 license (General Commercial Contractor) issued by the Registrar of Contractors.

2. Complainant and Respondent entered into a written contract on November 13, 1997 whereby the Respondent contractor agreed to furnish material and perform services necessary to the construction of a parking facility adjacent the Heritage Square Office Building in Flagstaff, Arizona. In consideration for the work performed and materials provided, Respondent and Complainant agreed upon a lump-sum contract price of $7,604.00.

3. Respondent has paid Complainant all but $1,110.00 of that which was due under the contract.

4. Respondent stipulates that the payment sought by Complainant is due and owing, with Respondent liable for the charge pursuant to the terms of the contract.

5. Federal Insurance Company is surety for Cohen Contracting, Inc., Cohen having provided a payment bond on the project in an effort to protect Complainant and those similarly situated. For some reason unknown to Respondent, Federal Insurance Company has not made final payment to Hawkeye Striping, Inc., albeit Cohen Contracting has requested the claims attorney with Federal to do so.

6. As of January 1, 1999, the principles involved in Cohen Contracting are doing business as CCG Construction LLC, according to the testimony of Ed Trybula, formerly Project Manager with Cohen and currently holding a similar position with CCG. As of January 1999, Cohen Contracting has ceased bidding for jobs under that name. The company, however, has not surrendered its license to the Registrar of Contractors.

7. The weight and sufficiency of the evidence of record establishes that Respondent is liable for the sum sought by Complainant and is operating as a successor corporation, although not in name, fully solvent and capable of honoring its debt to Hawkeye Striping, Inc. pursuant to the agreed upon terms.

CONCLUSIONS OF LAW

1. The evidence of record has sufficiently established that Respondent has violated that which is set forth at A.R.S ( 32-1154 (A) (7) and (11).

2. The burden of proof generally at an administrative hearing falls to the Complainant. Culpepper v. Arizona Board of Nursing, 187 Ariz. 431, 930 P.2d 508 (App. 1997). Further, the standard of proof is that of the “preponderance of the evidence”. Smith v. Arizona Department of Transportation, 146 Ariz. 430, 706 P.2d 756 (App. 1985).

3. By a preponderance of the evidence, Complainant has established that Respondent contractor violated A.R.S ( 32-1154 (A) (7) as charged in the Citation and Complaint. It has been shown that Respondent has committed a wrongful or fraudulent act resulting in injury to another person, namely, Respondent’s failure to reimburse Complainant for work performed pursuant to a contract between the parties.

4. By a preponderance of all of the evidence, Complainant has established that Respondent contractor violated A.R.S ( 32-1154 (A) (11) as charged in the Citation and Complaint. Respondent/licensee and/or its agent has failed to pay Complainant that which is owed for materials or services rendered in connection with the Respondent/licensee’s operations as a contractor.

5. Respondent’s failure to reimburse Complainant for materials and services rendered in connection with Respondent’s license as a contractor and pursuant to its contract with Complainant constitutes a statutory violation for which a fair and just disciplinary penalty ought to be imposed. Given the facts presented and in consideration of all of the circumstances, Respondent should be required to satisfy its debt owed to Complainant in the sum of $1,110.00 and, for the failure of which obligation, Respondent should be caused to surrender its license upon a revocation thereof.

RECOMMENDED ORDER

In view of the foregoing, IT IS RECOMMENDED that Respondent’s Class B- license be revoked on the effective date of the Order entered in this matter. IT IS FURTHER RECOMMENDED that if Respondent reimburses Complainant the monies which are owed as described in Findings of Fact Nos. 3 and 4 herein on or before the effective date of the Order, the revocation should not take effect. Set forth this 18th day of January in the year 2000.

______________________________________ Gary B. Strickland Administrative Law Judge

Original transmitted by mail this ____ day of ____________, 2000, to:

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

By ___________________________

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