ALJDEC decisions subject to certification as final

2019A-02218-NPC-ROC · Registrar of Contractors · 2020-05-19

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

J D M Counter Tops Inc.,

COMPLAINANT,

Fordel Development LLC,

ROC License: ROC 284258,

RESPONDENT

No. 2019A-02218-NPC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: November 8, 2019, with the record held open until May 1, 2020

APPEARANCES: Complainant J D M Counter Tops Inc. was represented by James N. Hanson. Anthony Kurth appeared on behalf of Respondent Fordel Development LLC.

ADMINISTRATIVE LAW JUDGE: Tammy L. Eigenheer

_____________________________________________________________________

FINDINGS OF FACT

Fordel Development LLC (Respondent) is the holder of License No. 284258 issued by the Registrar of Contractors (Registrar).

On or about April 26, 2019, J D M Counter Tops Inc. (Complainant) filed a Complaint against Respondent with the Registrar alleging that Respondent had failed to pay Complainant the sum of $34,055.00 for work performed.

The parties were unable to resolve their differences, and Complainant requested an administrative hearing. The Registrar then issued a Citation for Alleged Violation of A.R.S. § 32-1154(A)(10).

At the hearing the parties agreed Respondent had made some payment and that the total amount due was then $25,778.00.

Respondent acknowledged it owed Complainant $25,778.00 and agreed that it would make payments towards that amount until the entire amount had been paid. The parties agreed to submit a status update by May 1, 2020, detailing whether the amount owed had been paid or if the matter should be submitted for a decision on the merits.

On or about May 1, 2020, counsel for Complainant submitted a Request for Decision on Merits in which counsel asserted that Respondent had not paid Complainant in full as agreed and requested that a decision be issued in the matter.

CONCLUSIONS OF LAW

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 a preponderance of the evidence. See A.A.C. R2-19-119.

A preponderance of the evidence is “such proof as convinces the trier of fact that the contention is more probably true than not.” Morris K. Udall, Arizona Law of Evidence § 5 (1960).

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 $750 when due for materials or services rendered in connection with the licensee's operations as a contractor unless the licensee proves that the licensee lacks the capacity to pay and has not received sufficient monies as payment for the particular construction work project or operation for which the services or materials were rendered or purchased.

The evidence established that, as of November 8, 2019, Respondent owed a total of $25,778.00 for services provided.

Therefore, Complainant established that Respondent violated A.R.S. § 32-1154(A)(10) by failing to pay Complainant $25,778.00 for services or materials rendered in connection with Respondent’s contracting business.

Based upon Respondent’s violation of the provisions of A.R.S. § 32-1154(A)(10), grounds exist to impose discipline against Respondent’s license

RECOMMENDed order

Based on the foregoing, it is recommended that the Registrar suspend Fordel Development LLC’s License No: 284258 issued by the Registrar until it has provided to the Registrar, and the Registrar has accepted, documents that establish that it has paid Complainant $25,778.00 since November 8, 2019.

It is further recommended that when and if the Registrar receives and accepts Respondent’s evidence that it has paid Complainant $25,778.00 since November 8, 2019, the Registrar may close the Complaint in Case No. 2019-02218.

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 40 days from the date of the certification.

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-137160-45720000Done this day, May 19, 2020.

/s/ Tammy L. Eigenheer

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors-54864001

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