ALJDEC decisions subject to certification as final

2021A-02271-NPC-ROC · Registrar of Contractors · 2021-09-16

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Quail Construction Arizona, LLC,

COMPLAINANT

All Affordable Plumbing, LLC

License No. ROC 265150,

RESPONDENT

No. 2021A-02271-NPC-ROC

ADMINISTRATIVE LAW JUDGE

DECISION

HEARING: September 10, 2021

APPEARANCES: Michael Nickerson appeared on behalf of Complainant Quail Construction Arizona, LLC. Respondent All Affordable Plumbing, LLC failed to appear.

ADMINISTRATIVE LAW JUDGE: Sondra J. Vanella

FINDINGS OF FACT

All Affordable Plumbing, LLC (“Respondent”) is the holder of License No. 265150 issued by the Arizona Registrar of Contractors (“Registrar”).

On or about May 21, 2021, Quail Construction Arizona, LLC (“Complainant”) filed a Complaint against Respondent with the Registrar alleging that Respondent had failed to pay Complainant the sum of $7,280.75 for the rental of traffic control equipment and services.

The parties were unable to resolve their differences. The Registrar issued a Citation against Respondent for its alleged violation of A.R.S. § 32-1154(A)(10).

The matter was set for administrative hearing before the Office of Administrative Hearings on September 10, 2021. On the date and at the time set for hearing, and after proper notice, Respondent failed to appear. After a grace period, the matter proceeded to hearing.

Michael Nickerson, Complainant’s President, testified that Complainant contracted with Respondent in July 2020, and began its performance pursuant to contract, in August 2020. Complainant sent six invoices for the services and equipment provided to Respondent. Three invoices were issued on September 18, 2020, one on September 25, 2020, one on September 30, 2020, and one on October 2, 2020.

Mr. Nickerson testified that Respondent failed to make any payment on the invoices notwithstanding multiple requests to do so in person and via emails and phone calls.

On December 14, 2020, Complainant sent Respondent an email requesting payment of the six invoices and attached copies of the invoices. Respondent did not respond.

On February 18, 2021, Complainant sent Respondent another email requesting payment of the six invoices and attached copies of the invoices. Respondent did not respond.

Respondent filed an Answer with the Registrar after the Citation was issued, acknowledging the following:

I am responding to the complaint no.2021-02271. I will be taking care of this issue and paying outstanding balance by end of business day August 31, 2021 in full. Sorry for the inconvience this may caused. It will be taken care of.

All errors in original.

Mr. Nickerson testified that as of the hearing date, Respondent had not paid any amount toward the outstanding invoices.

Respondent failed to appear and therefore, did not present any controverting evidence.

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 this matter is by a preponderance of the evidence. A preponderance of the evidence is “such proof as convinces the trier of fact that the contention is more probably true than not.”

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 owes a total of $7,280.75 for the traffic control equipment and services provided by Complainant.

Respondent failed to appear, and as such, failed to establish by a preponderance of the evidence that it lacked the ability to pay Complainant for the materials and services rendered.

Therefore, Complainant established that Respondent violated A.R.S. § 32-1154(A)(10) by failing to pay Complainant $7,280.75 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. 265150 issued by the Registrar until it has provided to the Registrar, and the Registrar has accepted, documents that establish that it has paid Complainant $7,280.75 in certified funds.

It is further recommended that when and if the Registrar receives and accepts Respondent’s evidence that it has paid Complainant $7,280.75 in certified funds, the Registrar may close the Complaint in Case No. 2021-02271.

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 forty (40) days from the date of the certification.

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-137160-45720000Done this day, September 16, 2021.

/s/ Sondra J. Vanella

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors

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