ALJDEC decisions subject to certification as final

2015A-1573-ROC · Registrar of Contractors · 2015-10-21

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: October 13, 2015, at 10:00 a.m. APPEARANCES: Ross Aerial Equipment dba Ross Equipment Rental and Sales (hereinafter “Complainant” or “Ross”) appeared through its authorized representative, Lynne Welton (hereinafter “Ms. Welton”). Lone Mountain Electric LLC (hereinafter “Respondent” or “Lone Mountain”) failed to appear. ADMINISTRATIVE LAW JUDGE: M. Douglas _____________________________________________________________________

Complainant brings this administrative complaint to force Respondent to pay a remaining balance for construction materials provided to Respondent as part of Respondent’s contracting business. As noted above, Respondent did not appear at the hearing; therefore, Complainant’s evidence is uncontested. This tribunal entered the complaint file received from the Arizona Registrar of Contractors (hereinafter “Registrar”) into the record and took testimony from Ms. Welton. Based upon the entire record, the Administrative Law Judge makes the following Findings of Fact, Conclusions of Law, and Recommended Order. FINDINGS OF FACT 1. Respondent is the holder of license Nos. C-11.268152-C and R- 11.296433-R issued by the Registrar. Administrative notice is hereby taken of Respondent’s license record as reflected on the Registrar’s public website on October 19, 2015. According to that information, Respondent’s licenses are current. 2. Complainant is a material supplier from whom Respondent purchased materials for use in Respondent’s construction business. Complainant’s witness, Ms. Welton, briefly testified about the amounts past due from Respondent, referring to individual invoices attached to the complaint filed with the ROC and also provided in paper form at the hearing. 3. Complainant has provided documentation showing that the original outstanding amount due for materials for the Walmart-Chandler job was the sum of $16, 252.33 and that the balance of the other charges due from Respondent to Complainant was the sum of $7,472.17. 4. Ms. Welton testified that on or about July 7, 2015, the parties were involved in a settlement conference. At the settlement conference Complainant agreed to accept and Respondent agreed to pay a reduced sum of $10,074.60 to be paid at the rate of $2,014.92 per month with the first payment to be made on July 20, 2015. Respondent failed to comply with the terms of the parties’ settlement agreement and failed to make any payments to Complainant. 5. Respondent did not appear at the hearing to dispute Complainant’s evidence. 6. Respondent’s failure to comply with the terms of the parties’ settlement agreement is found to be a matter in aggravation of the penalty. CONCLUSIONS OF LAW 1. The burden of proof at an administrative hearing is generally upon a complainant.[1] Further, the standard of proof at hearing is by preponderance of the evidence.[2] Therefore, Complainant bears the burden of showing, by a preponderance of the evidence, that Respondent has violated the statutes cited in the Citation and Complaint.[3] Complainant has met that burden. 2. The Citation cites the “no pay” provision found in A.R.S. § 32- 1154(A)(10), which prohibits the failure of a licensee to pay monies in excess of $750 “when due for materials or services” when the licensee has the capacity to pay or when the licensee has been paid for the project. The preponderance of the evidence is sufficient to show that Respondent has violated that provision. RECOMMENDED ORDER IT IS RECOMMENDED that License Nos. C-11.268152-C and R-11.296433-R held by Respondent”) Lone Mountain Electric LLC shall be revoked. 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 5 days from the date of that certification. Done this day, October 21, 2015.

/s/ M. Douglas Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director Registrar of Contractors

----------------------- [1] Utah Construction Company v. Berg et al, 68 Ariz. 285, 205 P.2d 367 (1949). [2] Smith v. Arizona Dept. of Transportation, 146 Ariz. 430, 706 P.2d 756 (App. 1985). [3] Culpepper v. State, 187 Ariz. 431, 437, 930 P.2d 508, 514 (Ct. App. 1996).

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