ALJDEC decisions subject to certification as final

2018A-05417-ROC · Registrar of Contractors · 2019-03-04

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: February 12, 2019, 1:00 P.M. APPEARANCES: Jessica Soto, Credit Manager, appeared on behalf of Complainant; Brad Fry, owner, appeared on behalf of Respondent ADMINISTRATIVE LAW JUDGE: Roger A. Geddes _____________________________________________________________________ FINDINGS OF FACT Background and Procedure 1. Elite Outdoor Designs, LLC (Respondent), is the holder of License Numbers 315074, 317216, 315244 issued by the Registrar of Contractors (Registrar). 2. On or about November 13, 2018, Monterrey Tile Company AZ, LLC, (Complainant), filed a Complaint against Respondent with the Registrar alleging that Respondent owed Complainant the sum of $23,508.87. This amount represented unpaid invoices on and relating to materials provided by Complainant in connection Respondent’s construction project. 3. On November 30, 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 February 12, 2019, at 1:00 P.M. 5. At the hearing, Jessica Soto, Credit Manager, testified on behalf of Complainant; Brad Fry, owner, testified on behalf of Respondent. The Tribunal received and admitted Complainant’s exhibit numbers 1 -`2.[1]

6. Jessica Soto testified on behalf of Complainant that four invoices are past due in the amount of $24,127.19 (including $1,835.90 in finance charges) for materials Complainant provided to Respondent for use in Respondent’s projects as a contractor. 7. Larry Fry, owner, did not dispute the outstanding invoices and testified that the company did not have the funds to pay the invoices. He stated he was paid for the jobs the materials were used on with the exception of one. 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 $22,291.29 (with finance charges excluded) 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 sufficient 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, that Elite Outdoor Designs, LLC’s, License Numbers 315074, 317216, 315244 are suspended until the Registrar receives and accepts written verification that Respondent has paid $22,291.29 to Complainant in certified funds. It is further recommended that if and when the Registrar receives and accepts Respondent’s evidence that it has paid Complainant $22,291.29 in certified funds, the Registrar may close this Complaint. 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, March 4, 2019.

/s/ Roger Geddes Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director Registrar of Contractors

----------------------- [1] The Tribunal also took administrative notice of the Registrar’s file.

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Office of Administrative Hearings 1740 West Adams Street, Lower Level Phoenix, Arizona 85007 (602) 542-9826