ALJDEC decisions subject to certification as final

2012A-3040-ROC · Registrar of Contractors · 2013-01-07

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: December 17, 2012 APPEARANCES: Complainant Kasha Waski LLC was represented by Ricardo Villa, its Qualifying Party. Respondent Shedmasters LLC was represented by Sharon Lujan, its Qualifying Party. ADMINISTRATIVE LAW JUDGE: Tammy L. Eigenheer _____________________________________________________________________ FINDINGS OF FACT 1. Shedmasters LLC (Respondent) is the holder of License No. KB-2.231138- D issued by the Registrar of Contractors (the Registrar). 2. Kasha Waski LLC (Complainant) provided building materials including doors and windows to Respondent for numerous projects from August 23, 2011, through February 21, 2012. As of February 21, 2012, Complainant had presented invoices totaling $21,175.17 to Respondent. 3. On December 1, 2011, Respondent paid Complainant $4,000.00 towards the invoices. 4. When Respondent failed to comply with Complainant’s repeated requests for the remaining balance, Complainant filed a formal Complaint against Respondent with the Registrar. 5. After Respondent did not fully resolve Complainant’s Complaint, the Registrar issued a Citation and Complaint against Respondent charging a possible violation of A.R.S. § 32-1154(A)(11). 6. Respondent filed a written answer to the Citation and Complaint stating that Respondent was “not denying the monies owed in the amount of $17,175.17 and have every intentions [sic] of paying the complainant Kasha Waski LLC.” 7. The Registrar referred the matter to the Office of Administrative Hearings (OAH), an independent state agency, for an evidentiary hearing. 8. A hearing was held on December 17, 2012. At the hearing, Complainant presented invoices, payment records, and testimony to establish that Respondent owed Complainant $17,175.17 in principal for materials that Complainant supplied to Respondent in connection with Respondent’s contracting business. 9. At the hearing, Respondent acknowledged that it owed Complainant funds in excess of $750.00. Respondent indicated it was seeking signed invoices that verified the materials received and the amounts owed prior to making further payments. 10. Administrative notice is taken of Respondent’s prior License record as reflected on the Registrar’s public website on January 4, 2013. Such prior License record reflects that Respondent’s License was current. CONCLUSIONS OF LAW This matter lies within the Registrar’s jurisdiction. See A.R.S. §§ 32- 1151 to 32-1169. Complainant bears the burden of proof to establish Respondent’s statutory violation by a preponderance of the evidence. 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). “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.R.S. § 32-1154(A)(11) 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 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.

Complainant established that Complainant provided materials to Respondent totaling $21,175.17, and that Respondent had paid Complainant only $4,000.00, leaving an unpaid balance of $17,175.17. Therefore, Complainant established that Respondent violated A.R.S. § 32- 1154(A)(11) by failing to pay Complainant $17,175.17 for materials that Complainant supplied to Respondent in connection with its contracting business. Based upon the above violation of the charged provision of A.R.S. § 32- 1154(A)(11), grounds exist to impose discipline against Respondent’s license. RECOMMENDED ORDER Based on the foregoing, it is recommended that on the effective date of the Registrar’s final Order in this matter, the Registrar suspend License No. B.149897-R previously issued to Respondent Shedmasters LLC until it pays Complainant Kasha Waski LLC $17,175.17. It is further recommended that if on or before the effective date of the Order, the Registrar receives from Respondent written proof that is satisfactory to the Registrar that Respondent has paid $17,175.17 to Complainant in certified funds, the Registrar not revoke Respondent’s license but, instead, close the complaint in Case No. 2012-3040. In the event of certification of the 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 that certification. Done this day, January 7, 2013.

/s/ Tammy L. Eigenheer Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors -----------------------

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