ALJDEC decisions subject to certification as final

2020A-01825-NPC-ROC · Registrar of Contractors · 2020-07-06

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Star Nursery, Inc.,

COMPLAINANT

Vass Landscaping LLC,

License No. ROC 310415,

RESPONDENT

No. 2020A-01825-NPC-ROC

ADMINISTRATIVE LAW JUDGE

DECISION

HEARING: June 29, 2020, at 9:00 a.m.

APPEARANCES: Bobby Jo Parslow, Credit Manager for Complainant Star Nursery, Inc.; Vincent Lambert, owner of Respondent Vass Landscaping, LLC

ADMINISTRATIVE LAW JUDGE: Sondra J. Vanella

FINDINGS OF FACT

Vass Landscaping LLC (Respondent) is the holder of License No. 310415 issued by the Registrar of Contractors (Registrar).

On or about April 3, 2020, Star Nursery, Inc. (Complainant) filed a Complaint against Respondent with the Registrar alleging that Respondent had failed to pay Complainant the sum of $38,657.13 for landscape materials 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).

Bobbie Jo Parslow, Complainant’s Credit Manager, testified that as of the date of the hearing, the total due to Complainant was $35,770.73. Ms. Parslow explained that on January 16, 2018, Respondent applied for a line of credit with Complainant for landscape materials. See Exhibit 1. Ms. Parslow testified that the line of credit was extended to Respondent with the understanding that, upon Respondent’s completion and payment for its respective jobs, Respondent would pay Complainant for the materials supplied for those jobs. Ms. Parslow testified that Respondent has an unpaid balance dating back to October 2019, despite demands for payment and promises to pay. Ms. Parslow further testified that she has been in contact with Cooper Homes, the general contractor for which Complainant was performing landscaping services for the project, The Pinnacle at Laughlin Ranch, a development in Bullhead City. Cooper Homes informed Ms. Parslow that Respondent had been paid in full for its work on the project.

Vincent Lambert, owner of Respondent, did not dispute at hearing that it owes the amount requested by Complainant. Mr. Lambert testified that he “always intended to pay” and “wants to fulfill the balance.” Mr. Lambert also stated that he has had a good working relationship for the past five years with Complainant and that he “wishes things were different.”

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.

Respondent did not contest the amount Complainant alleges it is owed for landscape materials provided by Complainant to Respondent. Therefore, the evidence established that Respondent owes Complainant a total of $35,770.73 for those materials.

Respondent failed to establish by a preponderance of the evidence that it lacked the ability to pay Complainant for the landscape materials supplied or had not received sufficient monies as payment for the projects at issue to pay Complainant.

Therefore, Complainant established that Respondent violated A.R.S. § 32-1154(A)(10) by failing to pay Complainant $35,770.73 for materials supplied 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 Respondent’s License No: 310415 issued by the Registrar until it has provided to the Registrar, and the Registrar has accepted, documents that establish that it has paid Complainant $35,770.73 in certified funds or any other payment method acceptable to Complainant.

It is further recommended that when and if the Registrar receives and accepts Respondent’s evidence that it has paid Complainant $35,770.73 in certified funds or any other acceptable payment method, the Registrar may close the Complaint in Case No. 2020-01825.

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, July 6, 2020.

/s/ Sondra J. Vanella

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors-54864001

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-137160-45720000