ALJDEC decisions subject to certification as final

2019A-05819-NPC-ROC · Registrar of Contractors · 2020-04-16

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Platinum Labor LLC,

COMPLAINANT

BST Construction Southwest LLC,

ROC License: ROC 318607,

RESPONDENT

No. 2019A-05819-NPC-ROC

ADMINISTRATIVE LAW JUDGE

DECISION

HEARING: April 16, 2020

APPEARANCES: Darianna Burgueno, part Owner, appeared on behalf of Complainant. Respondent did not appear.

ADMINISTRATIVE LAW JUDGE: Tammy L. Eigenheer

FINDINGS OF FACT

BST Construction Southwest LLC (Respondent) is the holder of License No. 318607 issued by the Registrar of Contractors (Registrar).

On or about November 22, 2019, Platinum Labor LLC (Complainant) filed a Complaint against Respondent with the Registrar alleging that Respondent had failed to pay Complainant the sum of $64,650.00 for labor services provided to Respondent.

On or about December 17, 2019, Complainant filed an amended complaint against Respondent with the Registrar alleging that Respondent had failed to pay Complainant the sum of $81,400.00 for labor services provided to Respondent.

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) and referred the matter to the Office of Administrative Hearings, an independent state agency, for an evidentiary hearing.

The Registrar issued a Notice of Hearing, setting a hearing at 9:00 a.m. on March 23, 2020. The Registrar mailed copies of the Notice of Hearing to Respondent at its address of record.

Due to the COVID-19 situation, the Office of Administrative Hearings continued the hearing to April 16, 2020. On March 19, 2020, the Minute Entry Continuance was issued via email to the parties at the email addresses on record. On March 27, 2020, an order advising the parties of the need to provide a telephone number to the Office of Administrative Hearings was email to the parties at the email addresses on record.

The hearing was held on April 16, 2020. Ms. Burgueno testified on behalf of Complainant.

Respondent did not provide a telephone number to appear telephonically and did not request that the hearing be continued. Respondent did not appear through an authorized member, employee, or attorney. Consequently, Respondent did not present any evidence to defend its license.

Ms. Burgueno, testifying on behalf of Complainant, stated that at the time of the complaint being filed, Respondent owed Complainant the principal amount $81,400.00. Ms. Burgueno stated that Complainant had a verbal agreement with Respondent. Ms. Burgueno indicated that Complainant had paid a total of $17,000.00 towards its invoices, but the balance of $81,400.00 still remained.

Administrative notice is taken of Respondent’s prior License record as reflected on the Registrar’s public website on April 17, 2020. Such prior License record reflects that Respondent’s License No. 318607 was first issued on March 20, 2018, and has been suspended since December 12, 2019, when it was issued a disciplinary suspension. Such prior License record also reflects that are two open complaints against Respondent’s license and three prior complaints resulting in discipline.

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 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.

The evidence established that Respondent owed a total of $81,400.00 for labor services provided.

Therefore, Complainant established that Respondent violated A.R.S. § 32-1154(A)(10) by failing to pay Complainant $81,400.00 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 BST Construction Southwest LLC’s License No: 318607 issued by the Registrar until it has provided to the Registrar, and the Registrar has accepted, documents that establish that it has paid Complainant $81,400.00 in certified funds.

It is further recommended that when and if the Registrar receives and accepts Respondent’s evidence that it has paid Complainant $81,400.00 in certified funds, the Registrar may close the Complaint in Case No. 2019-05819.

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.

-54864001

001

-137160-45720000Done this day, April 17, 2020.

/s/ Tammy L. Eigenheer

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors-54864001

001

-137160-45720000