ALJDEC decisions subject to certification as final

2019A-03330-NPC-ROC · Registrar of Contractors · 2019-09-19

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: September 11, 2019 APPEARANCES: Complainant was represented by James B. Reed. Respondent L and M Custom Painting Inc. did not appear. ADMINISTRATIVE LAW JUDGE: Tammy L. Eigenheer _____________________________________________________________________ FINDINGS OF FACT 1. L and M Custom Painting Inc. (Respondent) is the holder of License No. 258012 issued by the Registrar of Contractors (Registrar). 2. On or about June 26, 2019, The Sherwin Williams Company (Complainant) filed a Complaint against Respondent with the Registrar alleging that Respondent had failed to pay Complainant the sum of $113,973.45 for supplies provided to Respondent. 3. The Registrar then issued a Citation for Alleged Violation of A.R.S. § 32-1154(A)(10) and 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, setting a hearing on at 1:00 p.m. on September 11, 2019. The Registrar mailed a copy of the Notice of Hearing to Respondent at its address of record and emailed a copy to Respondent’s email address of record. 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 hearing was held as scheduled on September 11, 2019. 5. Respondent did not request to appear telephonically and did not request that the hearing be continued. Although the start of the hearing was delayed, Respondent did not appear through an authorized member, employee, or attorney. Consequently, Respondent did not present any evidence to defend its license. 6. Kim Haberer, Financial Analyst with Respondent, testified that the total due to Complainant was $113,973.45 for invoices going back to September 26, 2018. Ms. Haberer stated that Respondent opened a credit account with Respondent and had carried a balance that had not been paid. Ms. Haberer testified that the total due to Complainant did not include any interest or late fees. 7. Administrative notice is taken of Respondent’s prior License record as reflected on the Registrar’s public website on September 18, 2019. Such prior License record reflects that Respondent’s License No. 258012 was first issued on August 20, 2009, and was voluntarily cancelled on July 26, 2019. Such prior License record also reflects that there were no other open or prior complaints against Respondent’s 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 $113,973.45 for supplies provided by Complainant. 5. Therefore, Complainant established that Respondent violated A.R.S. § 32-1154(A)(10) by failing to pay Complainant $113,973.45 for materials rendered in connection with Respondent’s contracting business. 6. 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 L and M Custom Painting’s License No: 258012 issued by the Registrar until it has provided to the Registrar, and the Registrar has accepted, documents that establish that it has paid Complainant $113,973.45 in certified funds. It is further recommended that when and if the Registrar receives and accepts Respondent’s evidence that it has paid Complainant $113,973.45 in certified funds, the Registrar may close the Complaint in Case No. 2019- 03330. 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, September 19, 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