ALJDEC decisions subject to certification as final

2018A-1457-NPC-ROC · Registrar of Contractors · 2018-07-23

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Ross Aerial Equipment LLC,

COMPLAINANT,

v.

Rock Roofing LLC,

License No: 160029

RESPONDENT

No. 2018A-1457-NPC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: June 22, 2018, 8:30 A.M.

APPEARANCES: Lynne Welton, Credit Manager of Complainant, appeared on behalf of Complainant; Javier Valenzuela, Owner of Respondent, appeared on behalf of Respondent

ADMINISTRATIVE LAW JUDGE: Roger A. Geddes

_____________________________________________________________________

FINDINGS OF FACT

Background and Procedure

1. Rock Roofing, LLC (Respondent), is the holder of License Number 160029 issued by the Registrar of Contractors (Registrar).

2. On or about March 30, 2018, Ross Aerial Equipment, LLC (Complainant), filed a Complaint against Respondent with the Registrar alleging that Respondent owed Complainant the sum of $28,410.77. The Complainant alleged that this amount represented unpaid invoices on and relating to Respondent’s rental of equipment from Complainant for tile roofing work.

3. On April 13, 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. The Registrar issued a Notice of Hearing setting a hearing for June 22, 2018, at 8:30 A.M. Complainant presented the testimony of Lynne Welton, Credit Manager of Complainant; Respondent presented the testimony of Javier Valenzuela.

4. Lynne Welton testified on behalf of Complainant that Respondent had made one payment toward the outstanding invoices since the filing of the Complaint and now owed $25,510.72. (Complainant’s Exhibit 1).

5. Javier Valenzuela testified on behalf of Respondent that he did not dispute the amount Respondent owed. He stated that Respondent had a dispute with the general contractor of the subject project regarding materials supplied and that the general contractor owed Respondent over $51,000. (Respondent’s Exhibit 1). He further stated that Respondent’s total contract amount with the general contractor had been approximately $500,000, and that the general contractor had paid Respondent everything but the approximately $51,000 in dispute. As for the approximately $450,000 Respondent had received from the general contractor for the subject project, he testified that some of the funds from this project went into another job of Respondent in New Mexico. Mr. Valenzuela further stated that he also has had health issues that affected his ability to pay. (Respondent’s Exhibit 3).

6. Mr. Valenzuela stated that Respondent could make a $6,000 payment to Complainant next week and could also provide a payment plan with a personal note guarantying the remaining balance.

7. The Tribunal did not conclude the hearing on June 22, 2018, and advised the parties that the hearing would remain open until July 2, 2018. The hearing was to remain open to give the parties’ an opportunity to submit verification of the foregoing $6,000 payment and for Complainant to withdraw its Complaint if Respondent proposed a payment plan acceptable to Complainant. The Tribunal has not received any such verification or withdrawal by July 2, 2018, or at any time since.

8. Although Respondent alluded to its lack of capacity to pay the amount Complainant contended was due, Respondent presented no evidence in that regard.

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. Respondent did not dispute that it owed $25,510.77 to Complainant for materials or services rendered in connection with Respondent’s operations as a contractor. Further, there was insufficient evidence presented to establish that Respondent lacked the capacity to pay that amount. That Respondent chose to divert funds received from the general contractor on this project to another of Respondent’s projects is not a valid justification for not paying Complainant what it is due.

6. In this matter, Respondent failed to pay the amount of $25,510.77 to Complainant for materials or services rendered in connection with Respondent’s operations as a contractor. Therefore, 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, Rock Roofing, LLC’s, License Number 160029 is suspended until the Registrar receives and accepts written verification that Rock Roofing, LLC, has paid $25,510.77 to Ross Aerial Equipment, 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 $25,510.77 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 23, 2018.

/s/ Roger Geddes

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors