ALJDEC decisions subject to certification as final

2020A-01177-NPC-ROC · Registrar of Contractors · 2020-05-21

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Dunn Edwards Corporation,

COMPLAINANT,

Wilk & Son’s Painting Company LLC,

License No. ROC 319366,

RESPONDENT.

No. 2020A-01177-NPC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: May 12, 2020

APPEARANCES: Osvaldo Castro appeared on behalf of Complainant Dunn Edwards Corporation. No representative for Respondent Wilk & Son’s Painting Company LLC appeared.

ADMINISTRATIVE LAW JUDGE: Tammy L. Eigenheer

_____________________________________________________________________

FINDINGS OF FACT

Wilk & Son’s Painting Company LLC (Respondent) is the holder of License No. 319366 issued by the Registrar of Contractors (Registrar).

On or about March 6, 2020, Dunn Edwards Corporation (Complainant) filed a Complaint against Respondent with the Registrar alleging that Respondent had failed to pay Complainant the sum of $2,749.22 for materials provided.

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).

The Registrar 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 1:00 p.m. on May 12, 2020. The Registrar mailed copies of the Notice of Hearing to Respondent at its address and email address of record.

By order dated April 23, 2020, the parties were advised the hearing would be held telephonically and each party would need to provide the Office of Administrative Hearings with a telephone number at which they could be reached for the hearing.

The hearing was held as scheduled on May 12, 2020. Mr. Castro appeared on behalf of Complainant.

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

Mr. Castro testified that the total due to Complainant was $2,749.22 for materials supplied to Respondent. Mr. Castro detailed the efforts Complainant went through to try to collect the amount owed without success.

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 Respondent owed a total of $2,749.22 for materials supplied.

Therefore, Complainant established that Respondent violated A.R.S. § 32-1154(A)(10) by failing to pay Complainant $2,749.22 for 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 Wilk & Son’s Painting Company’s License No: 319366 issued by the Registrar until it has provided to the Registrar, and the Registrar has accepted, documents that establish that it has paid Complainant $2,749.22 in certified funds.

It is further recommended that when and if the Registrar receives and accepts Respondent’s evidence that it has paid Complainant $2,749.22 in certified funds, the Registrar may close the Complaint in Case No. 2020-01177.

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 21, 2020.

/s/ Tammy L. Eigenheer

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors-54864001

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-137160-45720000