ALJDEC decisions subject to certification as final

2017A-6141-NPC-ROC-RHG · Registrar of Contractors · 2018-07-25

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

OnCall Staffing and Skilled Trades,

COMPLAINANTS ,

v.

National Electrical Corporation,

License No: 281192

RESPONDENT.

No. 2017A-6141-NPC-ROC-RHG

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: July 6, 2018, 10:00 A.M.

APPEARANCES: Mark Grayson, Owner, and Denise Khimthang, Office Manager, appeared on behalf of Complainant; no appearance was made on behalf of Respondent

ADMINISTRATIVE LAW JUDGE: Roger A. Geddes

_____________________________________________________________________

FINDINGS OF FACT

Background and Procedure

1. National Electrical Corporation (Respondent), is the holder of License Number 281192 issued by the Registrar of Contractors (Registrar).

2. On or about December 11, 2017, OnCall Staffing and Skilled Trades (Complainant), filed a Complaint against Respondent with the Registrar alleging that Respondent owed Complainant the sum of $1,578.03. The Complaint reflects that this amount represented four unpaid invoices on and relating to electricians provided by Complainant in connection with a project for Respondent.

3. On December 21, 2017, 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 February 26, 2018, at 10:00 A.M.

5. On February 23, 2018, the matter was continued to March 12, 2018, at 11:00 A.M. at the request of Complainant.

6. At the March 12, 2018, hearing, Mark Grayson, Owner, and Denise Khimthang, Office Manager, testified on behalf of Complainant. There was no appearance on behalf of Respondent.

7. On April 22, 2018, the Registrar issued a Final Administrative Order, effective May 22, 2018, accepting the Administrative Law Judge’s April 2, 2018, decision to suspend National Electrical Corporation License Number 281192 until the Registrar received and accepted written verification that National Electrical Corporation had paid $1.378.03 to OnCall Staffing and Skilled Trades in certified funds.

8. On April 17, 2018, the Registrar received Respondent’s Request for Rehearing of the Final Administrative Decision and Order.

9. On May 8, 2018, the Registrar issued an Order Granting Request for Rehearing in accordance with A.A.C. R4-9-120(C)(1).

10. The Registrar issued a Notice of Rehearing that set a hearing for July 6, 2018, at 10:00 A.M. The Registrar mailed a copy of the Notice of Rehearing to Respondent on or about May 18, 2018, at its address of record.

11. At the July 6, 2018, hearing, Mark Grayson, Owner, and Denise Khimthang, Office Manager, testified on behalf of Complainant. The Tribunal received and admitted Complainant’s exhibit number 1.

12. Although the commencement of the hearing was delayed approximately 20 minutes, Respondent did not appear at any time during the hearing through an authorized officer, employee, attorney, or any other person. Consequently, Respondent did not present any evidence to defend its license. Respondent further did not request to appear telephonically and did not request that the hearing be continued.

13. Both Mark Grayson and Denise Khimthang testified on behalf of Complainant as to four unpaid invoices on the part of Respondent in the total amount of $1,578.03 for electrician services provided by Complainant to Respondent. Ms. Khimthang further testified that since the filing of the Complaint, Respondent had made one payment of $200.00 to Complainant on February 2, 2018, and another on March 2, 2018, leaving an unpaid balance of $1,178.03.

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 $1,178.03 to Complainant for services rendered in connection with Respondent’s operations as a contractor. There was no evidence presented to rebut the existence or extent of nonpayment.

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 National Electrical Corporation License Number 281192 is suspended until the Registrar receives and accepts written verification that National Electrical Corporation has paid $1,178.03 to OnCall Staffing and Skilled Trades in certified funds.

It is further recommended that if and when the Registrar receives and accepts Respondent’s evidence that it has paid Complainant $1,178.03 in certified funds, the Registrar may close the Complaint in this case.

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, July 25, 2018.

/s/ Roger Geddes

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors