ALJDEC

99F-F0313-ROC · Registrar of Contractors · 1999-10-26

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: October 18, 1999. APPEARANCES: COMPLAINANT: by Harley Gray, Jr., vice-president and authorized representative. RESPONDENT: No one appeared. ADMINISTRATIVE LAW JUDGE: Anthony Halas _____________________________________________________________________

This matter proceeded to hearing on October 18, 1999, to determine whether Respondent violated state law in failing to pay Complainant monies when due for services rendered as alleged by Complainant and as cited by the Registrar of Contractors (Registrar). Based on the testimony and evidence of record, and administrative notice of certain events and documents provided in the file, the following Findings of Fact, Conclusions of Law, and Recommended Decision are made and submitted to the Registrar of Contractors:

FINDINGS OF FACT 1. Respondent Gary Franck (Franck), dba Franck Contracting Service in Sedona, Arizona, holds contractor’s license no. 097545, Class B, issued by the Arizona Registrar of Contractors.

2. On or about January 17, 1999, Franck telephoned an order to Complainant Elliott Stone, Inc. (Elliott Stone), a corporation in Ashfork, Arizona, doing business supplying raw and manufactured flagstone to the trades. 3. The order was for 25.23 tons, at $120.00 per ton, of “snapped moss rock veneer”, to be delivered to a residence under construction at 63 Scenic Drive in Sedona. 4. Elliott Stone invoiced (No. 808, dated January 18, 1999) the materials at $3027.60 for a C.O.D. delivery, with a separate freight charge of $302.76 ($12.00 per ton) to be paid directly to the delivery service provided by the Bunker Sawmill Co. 5. At the time the materials were delivered, Franck paid the invoice amount by Franck Contracting Services check no. 1026, dated January 21, 1999. 6. Subsequently, by memorandum issued by Complainant's bank on January 29, 1999, that check was returned for insufficient funds. 7. After further efforts by Complainant's representatives seeking payment on the invoice were unsuccessful, the company filed the instant complaint with the Registrar on April 15, 1999. 8. When administrative efforts did not resolve the complaint, the Registrar then issued, on June 16, 1999, CITATION AND COMPLAINT in case no. F99-0313, charging Respondent with possible violations of A.R.S. § 32- 1154.A.7 and .11. Respondent Franck timely answered the complaint on June 30, 1999, conceding responsibility for the money owed for the materials and asserting he had gotten into a very serious financial situation, which he hoped to resolve to pay the invoice before the hearing. 9. At hearing, Harley Gray, Jr. (Gray), testified for Elliott Stone, and also offered the testimony of Keith Bunker (Bunker), owner of Bunker Sawmill, the company providing delivery of the moss rock to the residence in Sedona being built by Franck. 10. Gray confirmed the terms of the verbal agreement specifying the amount and type of rock ordered by Franck (with whom Elliott Stone had no prior dealings), to be paid on delivery in the amount of $3027.60, and the return of Franck’s check for insufficient funds, as well as Elliott Stone’s further unsuccessful efforts to gain any payment in any amount from Franck. Based on his dealings with Franck, Gray understood the residence Franck was building was for his own use or speculation, and was of the opinion that Franck never intended to pay for the material, which Gray explained was essentially unrecoverable once delivered. 11. Bunker testified to confirm his company’s delivery of the Elliott Stone material to the Sedona address, with his delivery driver collecting separate checks to Elliott Stone for the material and to Bunker Sawmill for the freight charge, noting that Franck’s check to his company had also been returned unpaid for insufficient funds, such that the freight charge remained unpaid to the present.

APPLICABLE LAW

A.R.S. § 32-1154.A provides, in pertinent part, as follows:

A. The holder of a license or any person listed on a license pursuant to this chapter shall not commit any of the following acts or omissions: . . . . . 7. The doing of a wrongful or fraudulent act by the licensee as a contractor resulting in another person being substantially injured. . . . . . 11. Failure 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.

. . . . . . . . . . . . . . . CONCLUSIONS OF LAW

1. To warrant action by the Registrar pursuant to the statutes above, Complainant Elliott Stone, Inc., must demonstrate by a preponderance of the evidence that Respondent Gary Franck violated either of the statutory sections cited. Culpepper v. State of Arizona, 187 Ariz. 431, 437-38, 930 P.2d 508 (Ariz. App. 1996). A “preponderance of the evidence” means that the evidence is sufficient to persuade the finder of fact that the proposition is “more likely true than not.” In re Arnold and Baker Farms, 177 B.R. 648, 654 (9th Cir. BAP (Ariz.) 1994). It “is evidence which is of greater weight or more convincing than the 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 1182 (rev. 6th ed. 1990). 2. Although the record fails to demonstrate conduct on the part of Respondent sufficient to be deemed fraudulent, the uncontroverted and probative evidence more than meets Complainant's burden of demonstrating wrongful conduct by Respondent in failing to pay, without legal excuse, monies in excess of seven hundred fifty dollars when due for materials rendered by Complainant in connection with Respondent's operations as a licensed contractor. 3. Complainant has therefore met its burden in demonstrating violations of A.R.S. §§ 32-1154.A. 7 and .11.

RECOMMENDED DECISION

In light of the foregoing, IT IS RECOMMENDED that the Registrar of Contractors suspend Respondent's License No. 097545, Class B, on the effective date of the Registrar’s Order, thirty-five days after the date of mailing. IT IS FURTHER RECOMMENDED that, if on or before the effective date of the Registrar's Order, written proof is provided the Registrar that Respondent has provided Complainant $3027.60 in restitution for its violation of the contracting laws, no license suspension shall take place, and the CITATION AND COMPLAINT in Case No. F99-0313 shall be closed. Done this day, October 26, 1999.

______________________________________ Anthony Halas Administrative Law Judge

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

Registrar of Contractors Mr. 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