ALJDEC decisions subject to certification as final

2021A-02897-NPC-ROC · Registrar of Contractors · 2021-09-16

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Ballard Truss, LLC,

COMPLAINANT

Robbins Design Enterprises, LLC

DBA: RDE Fab,

License No. ROC 328723,

RESPONDENT

No. 2021A-02897-NPC-ROC

ADMINISTRATIVE LAW JUDGE

DECISION

HEARING: September 13, 2021

APPEARANCES: Neal Pond and Charlie Ballard appeared on behalf of Complainant Ballard Truss, LLC. Respondent Robbins Design Enterprises, LLC, doing business as RDE Fab, failed to appear.

ADMINISTRATIVE LAW JUDGE: Sondra J. Vanella

FINDINGS OF FACT

Robbins Design Enterprises, LLC, doing business as RDE Fab (“Respondent”), is the holder of License No. 328723 issued by the Arizona Registrar of Contractors (“Registrar”).

On or about June 24, 2021, Ballard Truss, LLC (“Complainant”) filed a Complaint against Respondent with the Registrar alleging that Respondent had failed to pay Complainant the sum of $9,650.00 for the design and construction of custom trusses for the Orr residence.

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 13, 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.

Neal Pond, Complainant’s Financial Controller, testified that Respondent paid half of the $19,300.00 contract price, in the amount of $9,650.00. Complainant completed its design and construction of the custom trusses pursuant to the parties’ October 2020 contract, shipped them to the Orr residence on November 9, 2020, and invoiced Respondent for the balance due.

Mr. Pond testified that after several months of not receiving payment, Complainant emailed and called Respondent in an attempt to obtain payment. Respondent failed to make any payment on the invoices notwithstanding multiple requests to do so via emails and phone calls.

Mr. Pond testified that in June 2021, the Orrs contacted Complainant as they were closing on their home, and requested a lien waiver from Complainant. Mr. Pond declined to issue a lien waiver because Complainant had not been paid in full. Notwithstanding Complainant not having signed a lien waiver, the Orrs had received a lien waiver that was purportedly signed by Charlie Ballard, Complainant’s owner. Mr. Ballard testified that he did not sign a lien waiver, and that he “never signs them because he does not know” if and when Complainant receives payment on a project. Complainant submitted into evidence copies of Mr. Ballard’s signature which do not match the signature on the lien waiver.

As of the hearing date, Respondent had not paid any amount toward the outstanding balance.

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 $9,650.00 for the design and construction of the custom trusses for the Orr residence 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 $9,650.00 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. 328723 issued by the Registrar until it has provided to the Registrar, and the Registrar has accepted, documents that establish that it has paid Complainant $9,650.00 in certified funds.

It is further recommended that when and if the Registrar receives and accepts Respondent’s evidence that it has paid Complainant $9,650.00 in certified funds, the Registrar may close the Complaint in Case No. 2021-02897.

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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-137160-45720000