ALJDEC decisions subject to certification as final

2021A-04527-NPC-ROC · Registrar of Contractors · 2021-12-16

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Carson Sales Co,

COMPLAINANT

JMT Mechanical LLC

License No. ROC 288920,

RESPONDENT

No. 2021A-04527-NPC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: December 15, 2021

APPEARANCES: Michael Maloney, General Manager, appeared on behalf of Complainant Carson Sales Co. Justine Trevino, Owner and Qualifying Party, appeared on behalf of Respondent JMT Mechanical LLC.

ADMINISTRATIVE LAW JUDGE: Tammy L. Eigenheer

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FINDINGS OF FACT

JMT Mechanical LLC (Respondent) is the holder of License No. 288920 issued by the Registrar of Contractors (Registrar).

On or about September 14, 2021, Carson Sales Co. (Complainant) filed a Complaint against Respondent with the Registrar alleging that Respondent had failed to pay Complainant the sum of $4181.89 for materials provided to Respondent in connection with its contracting business.

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).

Mr. Maloney testified that the total due to Complainant was $4181.89. Mr. Maloney stated that the terms in its credit application were net 30 days and that after that time, Complainant could charge 1.5 percent interest on the balance due, but had not done so in this case. Mr. Maloney indicated that Respondent had owed the total amount due for a period of over 18 months.

Ms. Trevino acknowledged that Respondent owed Complainant the sum of $4181.89. Ms. Trevino testified that Respondent had not been paid over two millions dollars on the project for which the materials had been purchased, but acknowledged that Respondent had been paid more than $4200.00 in total on the project. Ms. Trevino indicated that Respondent had a pending lawsuit against the general contractor that was going to trial in March 2022. Ms. Trevino testified that she had been forced to stop working under the license, was working at a low-paying job, and had trouble paying her mortgage. Ms. Trevino maintained that she did not want to owe anyone anything, and that as soon as she receives the funds from the general contractor, she would pay Complainant.

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 $4189.89 for materials rendered in connection with Respondent’s operations as a contractor.

Respondent failed to establish by a preponderance of the evidence that it lacked the ability to pay Complainant for the work performed and had not received sufficient monies as payment for the project.

Therefore, Complainant established that Respondent violated A.R.S. § 32-1154(A)(10) by failing to pay Complainant $4189.89 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: 288920 issued by the Registrar until it has provided to the Registrar, and the Registrar has accepted, documents that establish that it has paid Complainant $4189.89 in certified funds.

It is further recommended that when and if the Registrar receives and accepts Respondent’s evidence that it has paid Complainant $4189.89 in certified funds, the Registrar may close the Complaint in Case No. 2020-04527.

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, December 16, 2021.

/s/ Tammy L. Eigenheer

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors

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