ALJDEC decisions subject to certification as final

2019A-01402-NPC-ROC · Registrar of Contractors · 2019-07-22

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: July 2, 2019, 9:00 A.M. APPEARANCES: Julian Verdin, President, 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. Danny Meador Construction, LLC (Respondent), is the holder of License Numbers 296063 and 286709 issued by the Registrar of Contractors (Registrar). 2. On or about March 18, 2019, Vulcan Electric, Inc. (Complainant), filed a Complaint against Respondent with the Registrar alleging that Respondent owed Complainant the sum of $6,045.00. This amount represented various unpaid invoices relating to Complainant’s electrical work performed for Respondent. 3. On April 11, 2019, 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 July 2, 2019, at 9:00 A.M. The Registrar mailed a copy of the Notice of Hearing to Respondent on or about May 15, 2019, 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, Complainant presented the testimony of Julius Verdin, President. The Tribunal received and admitted Complainant’s exhibit numbers 1 - 2.[1] 7. Although the commencement of the hearing was delayed approximately 15 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 nor did it request that the hearing be continued. Julius Verdin testified on behalf of Complainant as to three outstanding invoices for electrical work totaling $6,045.00. (Complainant’s Exhibit 1). While he indicated the parties had negotiated a lesser amount to be paid, he testified that the negotiated amount was contingent upon immediate payment from Respondent, which he said Respondent did not pay despite its representation to the contrary. As a result, he stated Complainant now sought the full balance of $6,045.00 owed. 9. Pursuant to Arizona Administrative Code Rule 4-9-117, administrative notice is taken of the Registrar’s public website in which it is indicated that Respondent’s licenses were revoked. The administratively revoked status of Respondent’s license is considered as a factor in aggravation of any determination of discipline. 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 administratively revoked status of Respondent’s licenses does not deprive Complainant of its right to prosecute its complaint against Respondent or prevent the Registrar from determining the merits of Complainant’s complaint. See A.R.S. § 32-1154(D) (“The expiration, cancellation, suspension or revocation of a license . . . shall not deprive the registrar of jurisdiction to proceed with any investigation of or action or disciplinary proceeding against such license, or to render a decision suspending or revoking such a license . . .”). 3. 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. 4. 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). 5. 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.

6. The evidence established that Respondent failed to pay the amount of $6,045.00 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. 7. In this matter, Complainant has established that Respondent’s licenses 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, Respondent’s License Numbers 296063 and 286709 are revoked until the Registrar receives and accepts written verification that Respondent has paid $6,045.00 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 $6,045.00 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, July 22, 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 document submissions to the Arizona Office of Administrative Hearings.

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