ALJDEC decisions subject to certification as final

2016A-1866-ROC · Registrar of Contractors · 2016-09-19

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: August 29, 2016 APPEARANCES: Miguel Gamez, District Sales Manager, appeared on behalf of Complainant Calmat Co. doing business as Vulcan Materials Company. Respondent Real Exquisite Estates and Properties LLC did not appear. ADMINISTRATIVE LAW JUDGE: Tammy L. Eigenheer _____________________________________________________________________ FINDINGS OF FACT 1. Real Exquisite Estates and Properties LLC (Respondent) is the holder of License No. 240880 issued by the Registrar of Contractors (Registrar). 2. On or about May 31, 2016, Calmat Co. doing business as Vulcan Materials Company (Complainant) filed a Complaint against Respondent with the Registrar alleging that Respondent had failed to pay Complainant the sum of $1245.00 for concrete delivered to Respondent. 3. The parties were unable to resolve their differences, and Complainant requested an administrative hearing. The Registrar then issued a Citation for Alleged Violation of A.R.S. § 32-1154(A)(10). 4. Miguel Gamez testified that the total due to Complainant was $1245.00 for concrete delivered on April 19, 2016. Mr. Gamez stated that a representative from Respondent alleged that an April 15, 2016 pour was late and therefore, Respondent would not pay for the April 19, 2016 pour. Mr. Gamez stated that Respondent paid for the April 15, 2016 pour. Mr. Gamez also indicated that his trucks are equipped with GPS trackers that show neither pour was late. 5. Respondent did not appear and did not provide any evidence in support of its position. CONCLUSIONS OF LAW 1. The burden of proof at an administrative hearing falls to the party asserting a claim, right, or entitlement and the standard of proof on all issues in these matters is by a preponderance of the evidence. See A.A.C. R2-19-119. 2. 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). 3. A.R.S. § 32-1154(A)(10) includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, [f]ailure 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.

4. The evidence established that Respondent owed a total of $1245.00 for concrete. Therefore, Complainant established that Respondent violated A.R.S. § 32-1154(A)(10) by failing to pay Complainant $1245.00 for services or materials rendered in connection with Respondent’s contracting business. 5. Based upon Respondent’s violation of the provisions of A.R.S. § 32- 1154(A)(10), grounds exist to impose discipline against Respondent’s license RECOMMENDed order Based on the foregoing, it is recommended that the Registrar suspend Real Exquisite Estates and Properties LLC’s License No: 240880 issued by the Registrar until it has provided to the Registrar, and the Registrar has accepted, documents that establish that it has paid Complainant $1245.00 in certified funds. It is further recommended that when and if the Registrar receives and accepts Respondent’s evidence that it has paid Complainant $1245.00 in certified funds, the Registrar may close the Complaint in Case No. 2016- 1866. In the event of certification of this 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 the certification. Done this day, September 19, 2016.

/s/ Tammy L. Eigenheer Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director Registrar of Contractors -----------------------

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