ALJDEC decisions subject to certification as final

2020A-05533-NPC-ROC · Registrar of Contractors · 2021-06-28

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Munoz Custom Fence Inc,

COMPLAINANT

NE2AZ LLC

License No. ROC 310115,

RESPONDENT

No. 2020A-05533-NPC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: June 16, 2021

APPEARANCES: Daryl Wilson, Esq. appeared via Google Meet on behalf of Complainant Munoz Custom Fence Inc. No representative appeared on behalf of Respondent NE2AZ LLC.

ADMINISTRATIVE LAW JUDGE: Adam D. Stone

_____________________________________________________________________

FINDINGS OF FACT

NE2AZ LLC (Respondent) was the holder of License No. 310115 issued by the Registrar of Contractors (Registrar).

On or about November 18, 2020, Munoz Custom Fence Inc. (Complainant) filed a Complaint against Respondent with the Registrar, alleging that Respondent had failed to pay Complainant the sum of $14,250.00 for services rendered in conjunction with construction of a horse corral, and fencing.

The parties were unable to resolve their differences, and Complainant requested an administrative hearing. The Registrar issued a Citation for Alleged Violation of A.R.S. § 32-1154(A)(10) on January 4, 2021.

On January 19, 2021, Respondent e-mailed a Response to the Citation disputing the amounts owed, and claiming that there were workmanship issues with the work performed by Complainant.

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 on March 29, 2021 at 9:00 a.m. The Registrar mailed copies of the Notice of Hearing to Respondent at its address and email address of record.

The parties stipulated to continue the hearing, and by order dated March 22, 2021, the matter was continued to June 16, 2021 at 1:00 p.m.

The hearing was held as scheduled on June 16, 2021. Complainant offered thirteen exhibits into the record and Robert Munoz testified on behalf of Complainant.

The Tribunal waited for fifteen minutes, but Respondent failed to appear. Because Respondent did not appear through an authorized member, employee, or attorney, Respondent did not present any evidence to defend its license.

Mr. Munoz testified that he entered into a contract with Respondent for $43,000.00 on May 18, 2021.

Mr. Munoz testified further that per the terms of the contract, 50% ($21,500.00) of the contract price was due as a down payment, with 25% ($10,750.00) due at the halfway point and the remaining 25% ($10,750.00) due upon completion. Mr. Munoz testified that Respondent requested if he could only pay $18,000.00 as a down payment instead of the $21,500.00, and Mr. Munoz agreed to the same.

In addition, Mr. Munoz testified that at about four months into the project he was halfway completed. He provided an invoice to Respondent for the $10,750.00 progress payment as well as the remaining balance from the down payment. Therefore the total invoiced amount due to Complainant was $14,250.00.

Mr. Munoz testified that Respondent disputed the amounts and did not believe that Complainant was halfway completed. Mr. Munoz presented the photographs in Exhibit 13 to demonstrate the work completed.

Mr. Munoz testified that despite informing Respondent that he would accept a different amount as he had previously, Respondent failed to pay any of the invoiced amount.

Finally, Mr. Munoz testified that upon his information and belief, Respondent had been paid by its client and thus should have had the money to pay for the work performed by Complainant.

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 $14,250.00 for the work performed to the halfway point, and the remaining balance of the down payment.

Therefore, Complainant established that Respondent violated A.R.S. § 32-1154(A)(10) by failing to pay Complainant $14,250.00 for services 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 NE2AZ LLC’s License No: 310115 issued by the Registrar until it has provided to the Registrar, and the Registrar has accepted, documents that establish that it has paid Complainant $14,250.00 in certified funds.

It is further recommended that when and if the Registrar receives and accepts Respondent’s evidence that it has paid Complainant $14,250.00 in certified funds, the Registrar may close the Complaint in Case No. 2020-05533.

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 30 days from the date of the certification.

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-137160-45720000Done this day, June 28, 2021.

/s/ Adam D. Stone

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors

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