ALJDEC decisions subject to certification as final

2017A-6116-NPC-ROC · Registrar of Contractors · 2018-04-03

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Monterrey Tile Company,

COMPLAINANT,

v.

Element Design and Landscape LLC ,

License No: 202835

RESPONDENT.

No. 2017A-6116-NPC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: March 14, 2018, 8:30 A.M.

APPEARANCES: Jessica Soto, Credit Manager, appeared on behalf of Complainant; Larry Crotts, owner, appeared on behalf of Respondent

ADMINISTRATIVE LAW JUDGE: Roger A. Geddes

_____________________________________________________________________

FINDINGS OF FACT

Background and Procedure

1. Element Design and Landscape, LLC (Respondent), is the holder of License Number 202835 issued by the Registrar of Contractors (Registrar).

2. On or about December 8, 2017, Monterrey Tile Company, (Complainant), filed a Complaint against Respondent with the Registrar alleging that Respondent owed Complainant the sum of $1,753.09. This amount represented four unpaid invoices on and relating to materials provided by Complainant in connection Respondent’s construction project.

3. On January 2, 2018, the Registrar then issued a Citation for Alleged Violation of A.R.S. § 32-1154(A)(10) for the alleged failure by Respondent to pay monies in excess of $750.00 when due for materials or services rendered in connection with Respondent’s operations as a contractor. The Registrar referred the matter to the Office of Administrative Hearings, an independent state agency, for an evidentiary hearing.

4. The Registrar issued a Notice of Hearing that set a hearing for March 14, 2018, at 8:30 A.M. The Registrar mailed a copy of the Notice of Hearing to Respondent on or about January 24, 2018, at its address of record.

5. At the hearing, Jessica Soto, Credit Manager, testified on behalf of Complainant; Larry Crotts, owner, testified on behalf of Respondent.

6. Jessica Soto testified on behalf of Complainant that four invoices are past due in the amount of $1,753.09 for materials Complainant provided to Respondent for use in Respondent’s projects as a contractor

7. Larry Crotts, owner, testified on behalf of Respondent that he did not dispute the existence or the extent of the past due amounts. He testified that serious medical issues have made it difficult for Respondent to stay current on various invoices.

CONCLUSIONS OF LAW

1. The Registrar has jurisdiction over this matter, pursuant to A.R.S. § 32-1101, et seq., which authorizes the Registrar to impose disciplinary sanctions against licenses for violations of A.R.S. § 32-1154.

2. 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 preponderance of the evidence. See Arizona Administrative Code Rule 2-19-119.

3. To warrant such sanctions by the Registrar, Complainant must demonstrate by a preponderance of the evidence that Respondent violated the statutory section cited. Proof by a “preponderance” means that “the evidence is sufficient to persuade the finder of fact that the proposition is more likely true than not.” In re: Arnold and Baker Farms, 177 B.R. 648 (9th Cir. BAP (Ariz.) 1994). See also Culpepper v. State of Arizona, 187 Ariz. 431, 930 P.2d 508 (App. 1996). It is “evidence which is of greater weight or more convincing than the evidence which is offered in opposition to it; that is, evidence which as a whole shows that the fact sought to be proved is more probable than not.” BLACK’S LAW DICTIONARY 1182 (Rev. 6th ed. 1990).

4. 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.

5. The evidence established that Respondent failed to pay the amount of $1,753.09 to Complainant for materials rendered in connection with Respondent’s operations as a contractor. There was no evidence presented to rebut the existence or extent of nonpayment nor was there evidence presented that Respondent lacked the capacity to pay.

6. In this matter, Complainant has established that Respondent’s license should be disciplined for a violation of A.R.S. § 32-1154(A)(10).

RECOMMENDED ORDER

Based on the foregoing, it is recommended that on the effective date of this Order, the Element Design and Landscape, LLC’s, License Number 202835 is suspended until the Registrar receives and accepts written verification that Element Design and Landscape, LLC, has paid $1,753.09 to Monterrey Tile Company in certified funds.

It is further recommended that if and when the Registrar receives and accepts Respondent’s evidence that it has paid Complainant $1,753.09 in certified funds, the Registrar may close the Complaint in Case No. 2017A-6116-NPC-ROC.

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 five days from the date of the certification.

Done this day, April 3, 2018.

/s/ Roger Geddes

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors