ALJDEC decisions subject to certification as final
2021A-00485-NPC-ROC · Registrar of Contractors · 2021-06-30
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
Lil Rock LLC,
DBA: Cutting Edge Components,
COMPLAINANT
v.
Minuteman Home Services LLC
DBA: Cutting Edge Components,
License No. ROC 316190,
RESPONDENT
No. 2021A-00485-NPC-ROC
ADMINISTRATIVE LAW JUDGE
DECISION
HEARING: June 10, 2021, 9:00 A.M.
APPEARANCES: Thomas R. Cashman appeared on behalf of Complainant; Ernie Merrill appeared on behalf of Respondent
ADMINISTRATIVE LAW JUDGE: Roger A. Geddes
_____________________________________________________________________
FINDINGS OF FACT
Background and Procedure
1. Minutemen Home Services LLC (Respondent), is the holder of License Number 316190 issued by the Registrar of Contractors (Registrar).
2. On or about February 2, 2021, Lil Rock LLC (Complainant), filed a Complaint against Respondent with the Registrar alleging that Respondent owed Complainant the sum of $6,884.07. The Complaint and supporting invoice included therein reflect that this amount represented the remaining unpaid amount on custom made cabinets manufactured by Respondent for Complainant in connection with a home remodel project performed by Respondent for a homeowner (“project”).
3. On March 22, 2021, the Registrar issued a Citation for Alleged Violation of A.R.S. § 32-1154(A)(10) for the alleged failure by Respondent to pay monies in excess of $750.00 when due for materials or services rendered in connection with Respondent’s operations as a contractor. 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 for June 10, 2021, at 9:00 A.M.
4. At the June 10, 2021, hearing, Complainant presented the testimony of Thomas R. Cashman, owner of Complainant, who testified that Respondent ordered custom-made cabinets from Complainant, half of which were delivered to the project site. The other half of the cabinets were manufactured but not delivered because Respondent did not pay the remaining balance. Mr. Cashman stated a fifty per cent deposit had been paid by Respondent and the remaining balance was due when the remaining cabinets were ready to ship.
5. Respondent presented the testimony of Ernie Merrill. Member of Respondent, who testified there was a “falling out” with homeowner over payment and the project was not completed. He also testified that he had sold the company after the project and had hoped to pay Complainant out of the escrow but the sale did not go through and was rescinded. Mr. Merrill indicated he did not dispute the amount owed to Complainant but was unable to pay the balance because the homeowner had not paid.
CONCLUSIONS OF LAW
1. The Registrar has jurisdiction over this matter, pursuant to A.R.S. § 32-1101, et seq., which authorizes the Registrar to impose disciplinary sanctions against licenses for violations of A.R.S. § 32-1154.
2. 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 preponderance of the evidence. See Arizona Administrative Code Rule 2-19-119.
3. To warrant such sanctions by the Registrar, Complainant must demonstrate by a preponderance of the evidence that Respondent violated the statutory section cited. Proof by a “preponderance” means that “the evidence is sufficient to persuade the finder of fact that the proposition is more likely true than not.” In re: Arnold and Baker Farms, 177 B.R. 648 (9th Cir. BAP (Ariz.) 1994). See also Culpepper v. State of Arizona, 187 Ariz. 431, 930 P.2d 508 (App. 1996). It is “evidence which is of greater weight or more convincing than the evidence which is offered in opposition to it; that is, evidence which as a whole shows that the fact sought to be proved is more probable than not.” BLACK’S LAW DICTIONARY 1182 (Rev. 6th ed. 1990).
4. A.R.S. § 32-1154(A)(10) included 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.
5. A.R.S. § 32-1154(A)(10). Complainant has satisfied its burden to demonstrate that Respondent has failed to pay Complainant the amount of $6,884.07 that had become due for materials or services rendered in connection with Respondent’s operations as a contractor. Respondent did not dispute the actual amount Complainant sought under the subcontract. Further, Respondent did not present sufficient evidence that it did not have the capacity to pay the amount due. While Respondent indicated generally that the homeowner had not paid the full balance for the project, Respondent did not present any evidence of the amounts paid, or not paid, by the homeowner for the project.
6. In this matter, Respondent failed to pay the amount of $6,884.07 to Complainant for materials or services rendered in connection with Respondent’s operations as a contractor. Complainant has established that Respondent’s license should be disciplined for a violation of A.R.S. § 32-1154(A)(10).
RECOMMENDED ORDER
Based on the foregoing, it is recommended that on the effective date of this Order, Respondent’s License Number 316190 is suspended until the Registrar receives and accepts written verification that Respondent has paid $6,884.07 to Complainant in certified funds.
It is further recommended that if and when the Registrar receives and accepts Respondent’s evidence that it has paid Complainant $6,884.07 in certified funds, the Registrar may close this Complaint.
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 five days from the date of the certification.
Done this day, June 30, 2021.
/s/ Roger Geddes
Administrative Law Judge
Transmitted electronically to:
Jeffrey Fleetham, Director
Registrar of Contractors