ALJDEC decisions subject to certification as final

2021A-00782-NPC-ROC · Registrar of Contractors · 2021-05-28

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

New Western LLC,

COMPLAINANT

First American Contracting LLC

License No. ROC 312682,

RESPONDENT

No. 2021A-00782-NPC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: May 26, 2021

APPEARANCES: Katrina Rios appeared via Google Meet on behalf of New Western LLC. No representative for Respondent First American Contracting LLC appeared.

ADMINISTRATIVE LAW JUDGE: Adam D. Stone

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FINDINGS OF FACT

First American Contracting LLC (Respondent) is the holder of License No. 312682 issued by the Registrar of Contractors (Registrar).

On or about February 9, 2021, New Western LLC (Complainant) filed a Complaint against Respondent with the Registrar alleging that Respondent had failed to pay Complainant the sum of $9,860.71 for equipment provided.

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) on March 9, 2021.

On March 24, 2021, Respondent e-mailed a Response to the Citation stating, “I have been in touch with New Western in regards to the mentioned complaint and have said up a payment schedule. First payment has already been made.”

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 at 9:00 a.m. on May 26, 2021. The Registrar mailed copies of the Notice of Hearing to Respondent at its address and email address of record.

By order dated May 6, 2021, the parties were advised the hearing would be held via Google Meet.

The hearing was held as scheduled on May 12, 2020. Ms. Rios appeared 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.

Ms. Rios testified that the total due to Complainant was now $7,860.71 for equipment supplied to Respondent.

Ms. Rios testified that Respondent had submitted a credit application in November 2019, and rented equipment and paid for the same albeit late. Since June 2020, however, Respondent failed to pay. Ms. Rios testified that Respondent would acknowledge the debt and ask for more time, which Ms. Rios graciously gave.

After the Citation, Respondent made a $2,000.00 payment. Ms. Rios testified that Respondent then promised to pay another $2,000.00 on April 12, 2021, but failed to remit the same.

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 $7,860.71 for equipment supplied.

Therefore, Complainant established that Respondent violated A.R.S. § 32-1154(A)(10) by failing to pay Complainant $7,860.71 for equipment 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 First American Contracting LLC’s License No: 312682 issued by the Registrar until it has provided to the Registrar, and the Registrar has accepted, documents that establish that it has paid Complainant $7,860.21 in certified funds.

It is further recommended that when and if the Registrar receives and accepts Respondent’s evidence that it has paid Complainant $7,860.71 in certified funds, the Registrar may close the Complaint in Case No. 2021-00782.

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, May 28, 2021.

/s/ Adam D. Stone

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors

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