ALJDEC decisions subject to certification as final

2017A-3385-NPC-ROC · Registrar of Contractors · 2017-10-20

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

GTR Engineering LLC,

COMPLAINANT,

v.

Sky Construction and Engineering Inc.,

License No: 170650, 217140, 181955, 249209

RESPONDENT.

No. 2017A-3385-NPC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: October 2, 2017

APPEARANCES: Jade Gould, Owner, appeared on behalf of Complainant GTR Engineering LLC. Respondent Sky Construction and Engineering Inc. did not appear.

ADMINISTRATIVE LAW JUDGE: Tammy L. Eigenheer

_____________________________________________________________________

FINDINGS OF FACT

Sky Construction and Engineering Inc. (Respondent) is the holder of License Nos. 170650, 217140, 181955, and 249209 issued by the Registrar of Contractors (Registrar).

On or about June 30, 2017, GTR Engineering LLC (Complainant) filed a Complaint against Respondent with the Registrar alleging that Respondent had failed to pay Complainant the sum of $119,779.33 for engineering services provided related to Respondent’s various solar projects.

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).

The Registrar referred the matter to the Office of Administrative Hearings, an independent state agency, for an evidentiary hearing.

The Registrar issued a Notice of Hearing, setting a hearing on October 2, 2017, at 1:00 p.m. The Registrar mailed copies of the Notice of Hearing to Respondent at its address of record.

The Notice of Hearing informed the parties that “[f]ailure to attend the scheduled hearing is likely to result in an adverse ruling against you.”

A hearing was held on October 2, 2017. Jade Gould, Owner, appeared on behalf of Complainant and submitted four exhibits.

Respondent did not request to appear telephonically and did not request that the hearing be continued. Although the start of the hearing was delayed 20 minutes, Respondent did not appear through an authorized member, employee, or attorney. Consequently, Respondent did not present any evidence to defend its license.

Mr. Gould testified that at the time of the complaint, Respondent owed Complainant $119,779.33, but after the complaint was filed, Respondent had made payments and the balance due to Complainant had been reduced to $5,280.60.

CONCLUSIONS OF LAW

The copies of the Notice of Hearing that the Registrar mailed to Respondent at its address of record and at the address on its written answer were reasonable and Respondent is deemed to have received notice of the hearing. A.R.S. §§ 41-1092.04 and 41-1092.05(D).

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.

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)(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.

The evidence established that Respondent owed a total of $5,280.60 for engineering services.

Therefore, Complainant established that Respondent violated A.R.S. § 32-1154(A)(10) by failing to pay Complainant $5,280.60 for services or materials rendered in connection with Respondent’s contracting business.

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 Sky Construction and Engineering Inc.’s License Nos 170650, 217140, 181955 and 249209 issued by the Registrar until it has provided to the Registrar, and the Registrar has accepted, documents that establish that it has paid Complainant $5,280.60 in certified funds.

It is further recommended that when and if the Registrar receives and accepts Respondent’s evidence that it has paid Complainant $5,280.60 in certified funds, the Registrar may close the Complaint in Case No. 2017-3385.

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, October 20, 2017

/s/ Tammy L. Eigenheer

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors