ALJDEC decisions subject to certification as final

2021A-00046-NPC-ROC · Registrar of Contractors · 2021-04-22

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Tri-West Ltd,

COMPLAINANT

Biltmore Floors LLC,

License No. ROC 317590,

RESPONDENT

No. 2021A-00046-NPC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: April 7, 2021

APPEARANCES: Yvonne Cortez appeared via Google Meet on behalf of Complainant Tri-West Ltd.

ADMINISTRATIVE LAW JUDGE: Adam D. Stone

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FINDINGS OF FACT

Biltmore Floors LLC (Respondent) is the holder of License No. 317590 issued by the Registrar of Contractors (Registrar).

On or about January 5, 2021, Tri-West Ltd. (Complainant) filed a Complaint against Respondent with the Registrar alleging that Respondent had failed to pay Complainant the sum of $3,803.29 for flooring supplied 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).

The Registrar issued a Notice of Hearing, setting a hearing at 9:00 a.m. on April 7, 2021. The Registrar mailed copies of the Notice of Hearing to Respondent at its address and email address of record.

Ms. Cortez testified that the total due to Complainant was $3,803.29. Ms. Cortez testified that Respondent had remitted a check for $3,781.90, however, that check was returned for non-sufficient funds. Ms. Cortez also testified that she was seeking an additional $30.00 for the fee due to the returned check.

The copy of the Notice of Hearing that the Registrar mailed to Respondent at its address of record was reasonable and Respondent is deemed to have received notice of the hearing. A.R.S. §§ 41-1092.04 and 41-1092.05(D).

Although the start of the hearing was delayed 15 minutes, Respondent did not appear through an authorized member, employee, or attorney. Consequently, Respondent did not present any evidence to defend its license.

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 $3,803.29 for failure to pay for materials provided by Complainant.

Respondent failed to establish by a preponderance of the evidence that it lacked the ability to pay Complainant for the work performed.

Therefore, Complainant established that Respondent violated A.R.S. § 32-1154(A)(10) by failing to pay Complainant $3,803.29 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 Biltmore Floors LLC’s License No: 317590 issued by the Registrar until it has provided to the Registrar, and the Registrar has accepted, documents that establish that it has paid Complainant $3,803.29 in certified funds.

It is further recommended that when and if the Registrar receives and accepts Respondent’s evidence that it has paid Complainant $3,803.29 in certified funds, the Registrar may close the Complaint in Case No. 2021-00046.

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 20 days from the date of the certification.

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-137160-45720000Done this day, April 22, 2021.

/s/ Adam D. Stone

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors

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