ALJDEC decisions subject to certification as final

2017A-567-NPC-ROC · Registrar of Contractors · 2017-06-08

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Mile High Painting LLC,

COMPLAINANT,

v.

Energy Savings Heating & Cooling LLC,

License No: 270209,

RESPONDENT.

No. 2017A-567-NPC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: May 31, 2017

APPEARANCES: Steve Martinez (Martinez), owner and qualifying party of Mile High Painting LLC appeared on behalf of Complainant. Energy Savings Heating & Cooling LLC was represented by Steve Voevodsky, its qualifying party and representative.

ADMINISTRATIVE LAW JUDGE: Suzanne Marwil

_____________________________________________________________________

FINDINGS OF FACT

Energy Savings Heating & Cooling LLC (Respondent) is the holder of License No. 270209 issued by the Registrar of Contractors (Registrar). That license was made inactive on March 7, 2017 and was suspended until compliance on April 25, 2017.

Mile High Painting LLC (Complainant) filed a Complaint against Respondent with the Registrar alleging that Respondent had failed to pay its invoices from Complainant from August 2016 to January 2017 for services provided.

The parties were unable to resolve their differences, and Complainant requested an administrative hearing. The Registrar then issued a formal Citation charging Respondent with a possible violation of A.R.S. § 32-1154(A)(10).

Martinez testified that as of the hearing date, Respondent owed Complainant $5,000.00. He indicated that Respondent had paid Complainant $700.00 some months ago, but then said Complainant would have to wait for the remaining balance because some of Respondent’s vendors owed it money on other projects.

Steve Voevodsky testified on behalf of Respondent. He acknowledged that Respondent owed Complainant the money and intended to pay Complainant once Respondent’s vendor paid it the amounts it owed Respondent. Voevodsky noted that Respondent had to close because it ran out of cash. He stated that Complainant knew this, but Martinez continue to pursue the money and was rude to Voevodsky in public.

CONCLUSIONS OF LAW

Respondent’s suspended license does not deprive Complainant of his right to prosecute his complaint or prevent the Registrar from determining the merits of the complaint. See A.R.S. § 32-1154(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 . . . 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 Respondent had made a payment toward the invoiced total of $5,700.00 but still owed $5,000.00 to Complainant.

Respondent argued that it lacked the ability to pay Complainant for the work performed but that it intended to pay Complainant back when it had the means to do so. Respondent did not suggest that its inability to pay stemmed from nonpayment on any of the jobs for which Complainant had provided services.

Therefore, Complainant established that Respondent violated A.R.S. § 32-1154(A)(10) by failing to pay Complainant $5,000.00 for services 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 Energy Savings Heating & Cooling LLC s License No. 270209 issued by the Registrar until it has provided to the Registrar, and the Registrar has accepted, documents that establish that it has paid Complainant $5,000.00 in certified funds.

It is further recommended that when and if the Registrar receives and accepts Respondent’s evidence that it has paid Complainant $5,000.00 in certified funds, the Registrar may close the Complaint in Case No. 2017-567.

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 date, June 8, 2017.

/s/ Suzanne Marwil

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors