ALJDEC decisions subject to certification as final

2020A-03309-NPC-ROC · Registrar of Contractors · 2020-10-01

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Sahara Mechanical Inc.,

COMPLAINANT

Sierra Land Surveying and Development Services LLC,

License No. ROC 149095, 116370, 116371,

RESPONDENT

No. 2020A-03309-NPC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: September 24, 2020

APPEARANCES: Dale Booth appeared via Google Meet on behalf of Complainant, Sahara Mechanical, Inc. Chris Guinter appeared via Google Meet on behalf of Respondent, Sierra Land Surveying and Development Services, LLC.

ADMINISTRATIVE LAW JUDGE: Adam D. Stone

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FINDINGS OF FACT

Sierra Land Surveying and Development Services, LLC (Respondent) is the holder of License No. 149095, 116370 and 116371 issued by the Registrar of Contractors (Registrar).

On or about July 9, 2020, Sahara Mechanical, Inc. (Complainant) filed a Complaint against Respondent with the Registrar alleging that Respondent had failed to pay Complainant the sum of $47,644.60 (the remaining balance) for plumbing work performed on a project of seventeen two-story duplexes.

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).

Dale Booth testified that the total due to Complainant was $47,644.60.

Mr. Booth testified that in the proposal presented on October 15, 2018 to Respondent, a fixture allowance of $1,500.00 per building was provided because the owner of the project would decide on which fixtures were to be included at a later date. The proposal was signed by Mr. Guinter, Respondent’s representative.

Mr. Booth testified that Complainant provided an invoice to Respondent for $47,644.60 and that Respondent has failed to pay the same.

Mr. Guinter testified on behalf Respondent that it was their belief that the allowance should have been double, as it was Respondent’s understanding that the allowance was $1,500.00 per unit, not per building.

In support of this position, Mr. Guitner testified that a different proposal from August 3, 2018, stated the allowance was per unit.

Mr. Guinter testified that based on that proposal, he believed that the amount owed was $42,840.00

Respondent did not assert that it lacked the capacity to pay the amount Complainant asserted was due.

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 $47,644.60 for the project.

Respondent failed to establish by a preponderance of the evidence that it lacked the ability to pay Complainant for the work performed. The only “defense” that Respondent provided was that it believed the contract was per unit and not per building. This however is not persuasive as the proposal that was signed by Respondent clearly stated per building.

Therefore, Complainant established that Respondent violated A.R.S. § 32-1154(A)(10) by failing to pay Complainant $47,644.60 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 Respondent’s License No: 149095 issued by the Registrar until it has provided to the Registrar, and the Registrar has accepted, documents that establish that it has paid Complainant $47,644.60 in certified funds.

It is further recommended that when and if the Registrar receives and accepts Respondent’s evidence that it has paid Complainant $47,644.60 in certified funds, the Registrar may close the Complaint in Case No. 2020-03309.

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, October 1, 2020.

/s/ Adam D. Stone

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors

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