ALJDEC decisions subject to certification as final

2022A-03385-NPC-ROC · Registrar of Contractors · 2022-08-08

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Westrax Machinery LLC,

COMPLAINANT

High Adventure Excavation LLC

License No. ROC 323087,

RESPONDENT

No. 2022A-03385-NPC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: July 19, 2022

APPEARANCES: Elsa Zaragoza, Accounts Receivable, appeared on behalf of Complainant Westrax Machinery LLC. Respondent High Adventure Excavation LLC did not appear.

ADMINISTRATIVE LAW JUDGE: Tammy L. Eigenheer

_____________________________________________________________________

FINDINGS OF FACT

High Adventure Excavation LLC (Respondent) is the holder of License No. 323087 issued by the Registrar of Contractors (Registrar).

On or about April 25, 2022, Westrax Machinery LLC (Complainant) filed a Complaint against Respondent with the Registrar alleging that Respondent had failed to pay Complainant the sum of $25,318.97 for the rental of equipment.

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).

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 July 19, 2022. The Registrar mailed copies of the Notice of Hearing to Respondent at its address and email address of record. A July 6, 2022 order from the Office of Administrative Hearings advised the parties of how to connect to the hearing via Google Meet. The hearing was held via Google Meet on July 19, 2022.

Respondent did not request that the hearing be continued. Although the start of the hearing was delayed 20 minutes, Respondent did not appear through an authorized member, employee, or attorney. Consequently, Respondent did not present any evidence to defend its license.

Ms. Zaragoza testified that she was hired in December 2021 and was tasked with collecting past due invoices. Ms. Zaragoza stated that she discovered the invoices that had been issued to Respondent. Ms. Zaragoza indicated that she reached out to Respondent regarding the invoices and was told they would look into it and get back to her, but she did not hear anything else. Ms. Zaragoza testified the current total due to Complainant was $25,318.97.

CONCLUSIONS OF LAW

The copies of the Notice of Hearing that the Registrar mailed to Respondent at its address and email address of record were reasonable and Respondent is deemed to have received notice of the hearing. A.R.S. §§ 41-1092.04 and 41-1092.05(D).

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 $25,318.97 for the rental of equipment related to its contracting activities.

Therefore, Complainant established that Respondent violated A.R.S. § 32-1154(A)(10) by failing to pay Complainant $25,318.97 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 High Adventure Excavation LLC’s License No: 323087 issued by the Registrar until it has provided to the Registrar, and the Registrar has accepted, documents that establish that it has paid Complainant $25,318.97 in certified funds.

It is further recommended that when and if the Registrar receives and accepts Respondent’s evidence that it has paid Complainant $25,318.97 in certified funds, the Registrar may close the Complaint in Case No. 2022-03385.

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, August 8, 2022.

/s/ Tammy L. Eigenheer

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors-54864001

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-137160-45720000