ALJDEC decisions subject to certification as final

2016A-533-ROC · Registrar of Contractors · 2016-05-31

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: May 9, 2016 APPEARANCES: Complainant Harrington Industrial Plastics LLC was represented by D. Kim Lough. Holly Johnson appeared on behalf of Respondent Ash Underground LLC. ADMINISTRATIVE LAW JUDGE: Tammy L. Eigenheer _____________________________________________________________________ FINDINGS OF FACT 1. Ash Underground LLC (Respondent) is the holder of License No. 293840 issued by the Registrar of Contractors (Registrar). 2. On or about February 16, 2016, Harrington Industrial Plastics LLC (Complainant) filed a Complaint against Respondent with the Registrar alleging that Respondent had failed to pay Complainant the sum of $4,155.25 for materials supplied for a project. 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. T. Casey Franzen testified that Complainant provided pipes and fittings to Respondent on or about April 30, 2015, and May 11, 2015. On or about May 12, 2015, Complainant issued an invoice totaling $1,755.25 to Respondent. On or about May 14, 2015, Complainant issued a second invoice totaling $2,400.00 to Respondent. 5. On or about October 16, 2015, the Superior Court of Arizona Maricopa County entered a Default Judgment against Respondent finding that Respondent owed Complainant the principal sum of $4,155.25, attorneys’ fees of $1,881.50, costs of $489.40, and interest on those sums until payment in full. 6. Holly Johnson, Respondent’s Qualifying Party, did not deny the supplies were provided by Complainant or that Respondent owed those sums to Complainant. Ms. Johnson testified that Respondent had not been paid in full for the project and that some of the subcontractors had performed poor work that required additional work being done. Ms. Johnson stated that Respondent had billed for everything on the project, but asserted that Respondent had not been paid for all of the materials supplied on the project. Ms. Johnson did not provide any detailed accounting of what payouts had been requested and/or made on the project. 7. Administrative notice is taken of Respondent’s prior License record as reflected on the Registrar’s public website on May 31, 2016. Such prior License record reflects that Respondent’s License No. 293840 was suspended on March 7, 2016, until compliance. Such prior License record also reflects that are two open complaints against Respondent’s license and one prior complaint that led to discipline. 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 Complainant a total of $4,155.25 for the materials supplied for a project and that Complainant had properly invoiced Respondent for those sums owed. 5. Respondent failed to establish by a preponderance of the evidence that it lacked the ability to pay Complainant for the work performed. 6. Therefore, Complainant established that Respondent violated A.R.S. § 32-1154(A)(10) by failing to pay Complainant $4,155.25 for materials rendered in connection with Respondent’s contracting business. 7. 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 Ash Underground LLC’s License No: 293840 issued by the Registrar until it has provided to the Registrar, and the Registrar has accepted, documents that establish that it has paid Complainant $4,155.25 in certified funds. It is further recommended that when and if the Registrar receives and accepts Respondent’s evidence that it has paid Complainant $4,155.25 in certified funds, the Registrar may close the Complaint in Case No. 2016- 533. 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, May 31, 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