ALJDEC decisions subject to certification as final

2018A-1282-NPC-ROC · Registrar of Contractors · 2018-06-26

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

AZ Aircompany LLC,

COMPLAINANT,

v.

Clouse & Sons LLC,

License No: 310831

RESPONDENT.

No. 2018A-1282-NPC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: June 6, 2016, 10:00 A.M.

APPEARANCES: Corey Wirts, owner, 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. Clouse & Sons, LLC (Respondent), is the holder of License Number 310831 issued by the Registrar of Contractors (Registrar).

2. On or about March 20, 2018, AZ Aircompany, LLC (Complainant), filed a Complaint against Respondent with the Registrar alleging that Respondent owed Complainant the sum of $3,075.00. This amount represented various unpaid invoices relating to Complainant’s installation of HVAC units for Respondent.

3. On April 3, 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 June 6, 2018, at 10:00 A.M. The Registrar mailed a copy of the Notice of Hearing to Respondent on or about May 1, 2018, at its address of record.

5. 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.” The Notice of Hearing further advised of the procedure for requesting a continuance of the hearing.

6. At the hearing, Respondent presented the testimony of Corey Wirts and Lanty Defoe. The Tribunal received and admitted Complainant’s exhibit numbers 1 - 11 1 - 6.

7. Although the commencement of the hearing was delayed approximately 10 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.

8 Corey Wilts testified on behalf of Complainant that Respondent paid $1,500.00 earlier in the morning and that Respondent still owed $1,575.00.

9. Lanty Defoe testified on behalf of Complainant that Respondent had stated to her that Respondent had not been paid from the owner in order to pay Complainant.

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, a 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 $1,575.00 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, Clouse & Sons, LLC’s, License Number 310831 is suspended until the Registrar receives and accepts written verification that Clouse & Sons, LLC, has paid $1,575,00 to AZ Aircompany, LLC, in certified funds.

It is further recommended that if and when the Registrar receives and accepts Respondent’s evidence that it has paid Complainant $1,575.00 in certified funds, the Registrar may close the Complaint in Case No. 2018A-1282-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, June 26, 2018.

/s/ Roger Geddes

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors