ALJDEC decisions subject to certification as final

2019A-02499-NPC-ROC · Registrar of Contractors · 2019-10-31

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: October 31, 2019 APPEARANCES: Ron Sirwaitis, Owner and Qualifying Party, appeared on behalf of Complainant Ron Sirwaitis Custom Finishing Inc. Respondent Patterson Homes LLC doing business as Patterson Restoration did not appear. ADMINISTRATIVE LAW JUDGE: Tammy L. Eigenheer _____________________________________________________________________ FINDINGS OF FACT 1. Patterson Homes LLC doing business as Patterson Restoration (Respondent) is the holder of License No. 315545 issued by the Registrar of Contractors (Registrar). 2. On or about October 12, 2018, Ron Sirwaitis Custom Finishing Inc. (Complainant) entered into a time and materials contract with Respondent to complete repair work not completed on all cabinets. 3. On or about December 20, 2018, Complainant submitted an invoice to Respondent for a total amount due of $30,185.00. 4. Respondent did not make any payment on the total due to Complainant. 5. On or about May 13, 2019, (Complainant) filed a Complaint against Respondent with the Registrar alleging that Respondent had failed to pay Complainant the sum of $30,185.00 for the work performed. 6. 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). 7. At hearing, Mr. Sirwaitis testified as to the contract and work performed by Complainant. Mr. Sirwaitis stated that Complainant did not receive any payment from Respondent for the project. 8. Respondent did not appear, and therefore, did not present any evidence in defense of its license. CONCLUSIONS OF LAW 1. 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. 2. 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). 3. 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.

4. The evidence established that Respondent owed a total of $30,185.00 for work performed. Therefore, Complainant established that Respondent violated A.R.S. § 32-1154(A)(10) by failing to pay Complainant $30,185.00 for services or materials rendered in connection with Respondent’s contracting business. 5. 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 Patterson Homes LLC doing business as Patterson Restoration’s License No: 315545 issued by the Registrar until it has provided to the Registrar, and the Registrar has accepted, documents that establish that it has paid Complainant $30,185.00 in certified funds. It is further recommended that when and if the Registrar receives and accepts Respondent’s evidence that it has paid Complainant $30,185.00 in certified funds, the Registrar may close the Complaint in Case No. 2019- 02499. 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. Done this day, October 31, 2019.

/s/ Tammy L. Eigenheer Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director Registrar of Contractors -----------------------

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