ALJDEC decisions subject to certification as final

2019A-01408-NPC-ROC · Registrar of Contractors · 2019-09-11

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: August 22, 2019, 9:00 A.M. APPEARANCES: Complainant Jesus M. Leyva appeared on his own behalf; 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 21, 2019, Jesus Millan Leyva, DBA: Prestige Plumbing Co (Complainant), filed a Complaint against Respondent with the Registrar alleging that Respondent owed Complainant the sum of $12,620.00. This amount represented various unpaid invoices relating to electrical work performed by Complainant for various projects. 3. On April 2, 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 June 28, 2019, at 9:00 A.M. The Registrar mailed a copy of the Notice of Hearing to Respondent on or about May 3, 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. The matter was continued to August 22, 2019, at 1:00 P.M. A notice of the continuance was emailed to Respondent at its email address of record on June 21, 2019. 7. At the August 22, 2019, hearing, Complainant testified on his own behalf and presented the testimony of Raul Leyva. No appearance was made on behalf of Respondent. The Tribunal received and admitted Complainant’s exhibit numbers 1 - 3.[1] 8. 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 and did not request that the hearing be continued. 9. Complainant Jesus Leyva testified that Respondent has since paid two of the outstanding invoices in the amounts of $475.00 and $1,975.00. Complainant presented three remaining invoices he testified were due and unpaid in the amounts of $2,020.00, $3,450.00, and $3,500.00, totaling $8,970.00. Complainant had contended that an additional amount of $1,200.00 was owed in connection with the $3,500.00 invoice, but did not present sufficient evidence to justify that additional amount. 10. Raul Leyva testified on behalf of Complainant also concerning the unpaid invoices. 11. Pursuant to Arizona Administrative Code Rule 4-9-117, administrative notice is taken of the Registrar’s public website. On July 18, 2019, Respondent’s License Numbers 296063 and 286709 were revoked. The administratively revoked status of Respondent’s licenses 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 copy of the Notice of Hearing that the Registrar mailed to Respondent at its address of record and the continuance notice emailed to Respondent at its email address of record were reasonable and Respondent is deemed to have received notice of hearing. A.R.S. §§ 41-1092.4 and 41- 1092.05(D). 3. The administratively revoked status of Respondent’s licenses do not deprive Complainant of the right to prosecute a 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 . . .”). 4. 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. 5. 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). 6. 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.

7. The evidence established that Respondent failed to pay the amount of $8,970.00 when due to Complainant for services rendered in connection with Respondent’s operations as a contractor. There was no evidence presented to rebut the existence or the extent of nonpayment. 8. 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, Danny Meador Construction LLC’s License Numbers 296063 and 286709 are revoked. 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, September 11, 2019.

/s/ Roger Geddes Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director Registrar of Contractors

----------------------- [1] The Tribunal also took administrative notice of documents submitted by the Registrar 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