ALJDEC - Licensing
2022A-11051-NPC-ROC · Registrar of Contractors · 2023-08-07
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
Joseph Henry Pestel, Jr.
DBA : Dragon Electric,
COMPLAINANT,
v.
KLB HomeCrafters, LLC
License No. ROC 316821,
RESPONDENT.
No. 2022A-11051-NPC-ROC
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: August 2, 2023
APPEARANCES: Joe Pestel and Janine Pestel appeared on behalf of Complainant Joseph Henry Pestel, Jr., doing business as Dragon Electric. Respondent KLB HomeCrafters, LLC failed to appear.
ADMINISTRATIVE LAW JUDGE: Sondra J. Vanella
FINDINGS OF FACT
KLB HomeCrafters, LLC (“Respondent”) is the holder of License Number 316821, issued by the Arizona Registrar of Contractors (“Registrar”).
On or about December 5, 2022, Joseph Henry Pestel, Jr., doing business as Dragon Electric (“Complainant”), filed a Complaint against Respondent with the Registrar alleging that Respondent had failed to pay Complainant the sum of $5,817.60, representing three separate invoices for electrical work for two projects, the Balboa and Harwell projects.
The parties were unable to resolve their differences, and Complainant requested an administrative hearing.
On December 20, 2022, the Registrar issued a Citation charging Respondent with the alleged violation of A.R.S. § 32-1154(A)(10). Respondent timely filed an Answer to the Complaint.
A Notice of Hearing was issued on January 25, 2023, advising the parties that a hearing would convene before the Office of Administrative Hearings on March 2, 2023, at 1:00 p.m. On the date and time set for hearing. Joe Pestel appeared with his wife and Operations Manager/Estimator, Janine Pestel, on behalf of Complainant. Kelly Brown appeared on behalf of Respondent. Prior to the commencement of the hearing, the parties advised that they had entered into a settlement agreement, however, needed additional time in which to execute the terms of that agreement. The Administrative Law Judge found good cause to continue the hearing and set the matter for a written Status Update on March 9, 2023.
On March 9, 2023, Complainant submitted s Status Update indicating that it had not received any payment from Respondent and requested that the matter be reset for hearing.
On March 10, 2023, the undersigned issued a Minute Entry setting the matter for hearing on April 6, 2023, at 9:00 a.m. via Google Meet.
On April 4, 2023, Complainant filed a Motion to Continue the hearing.
On April 5, 2023, the undersigned issued a Minute Entry granting the continuance and advising the parties that the continued hearing would convene on April 26, 2023, at 9:00 a.m., and providing a new Google Meet link for the hearing.
On April 24, 2023, Respondent requested a continuance of the April 26, 2023 hearing date due to having tested positive for COVID and not feeling well enough to appear virtually.
On April 25, 2023, the undersigned issued a Minute Entry granting the continuance and advising the parties that the continued hearing would convene on May 12, 2023, at 1:00 p.m., and providing a new Google Meet link for the hearing.
The continued hearing of this matter convened on May 12, 2023, at 1:00 p.m. Mr. and Mrs. Pestel appeared on behalf of Complainant. Kelly Brown appeared on behalf of Respondent. During the course of the hearing, the parties requested additional time in which to resolve the matter. The Administrative Law Judge found good cause to continue the hearing and set the matter for a written Status Update on May 19, 2023.
On May 19, 2023, Complainant filed correspondence with the Office of Administrative Hearing indicating that although Respondent had made a partial payment, the matter had not been resolved as agreed upon, and requested that the matter be reset for hearing.
On May 23, 2023, the undersigned issued a Minute Entry granting the continuance and advising the parties that the continued hearing would convene on August 2, 2023, at 1:00 p.m., and providing a new Google Meet link for the hearing. The Minute Entry was sent to Respondent’s email address of record and at which Respondent had received all previous correspondence throughout these proceedings.
On August 2, 2023, at 1:00 p.m., Mr. and Mrs. Pestel appeared on behalf of Complainant. Respondent failed to appear. The Tribunal provided a ten (10) minute grace period for Respondent to appear, however, Respondent failed to appear and did not notify the Office of Administrative Hearings of any cause for the absence or delay. The hearing proceeded in Respondent’s absence.
The Complaint filed by Complainant indicates that Respondent failed to pay the following three invoices:
Invoice #20221053 dated September 1, 2022, in the amount of $1,363.44 for the Balboa project;
Invoice #20221059 dated October 26, 2022, in the amount of $2,324.16, also for the Balboa project; and
Invoice #20221072 dated November 4, 2022, in the amount of $2,130.00, for the Harwell project.
At hearing, Mr. Pestel described the electrical work that was completed by Complainant for the two projects.
Mrs. Pestel testified that on February 22, 2023, Respondent paid Invoice #20221053 in the amount of $1,363.44, and on May 19, 2023, Respondent paid Invoice #20221072 in the amount of $2,130.00. Therefore, the remaining balance due and owing to Complainant from Respondent is $2,324.16, representing the amount reflected in Invoice #20221059.
Respondent did not appear for the hearing, 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:
Failure 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 undisputed evidence established that Respondent failed to pay Complainant a total of $2,324.16 for the electrical work performed by Complainant.
Respondent failed to establish by a preponderance of the evidence that it lacked the ability to pay Complainant for the work performed and has 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 $2,324.16 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 KLB HomeCrafters, LLC’s License Number 316821 issued by the Registrar until it has provided to the Registrar, and the Registrar has accepted, documents that establish that it has paid Complainant $2,324.16 in certified funds.
It is further recommended that when and if the Registrar receives and accepts Respondent’s evidence that it has paid Complainant $2,324.16 in certified funds, the Registrar may close the Complaint in Case Number 2022A-11051.
Pursuant to A.R.S. § 41-1092.08(I), the licensee may accept the Administrative Law Judge Decision by advising the Office of Administrative Hearings in writing not more than ten (10) days after receiving the decision. If the licensee accepts the Administrative Law Judge Decision, the decision shall be certified as the final decision by the Office of Administrative Hearings.
In the event of certification of the 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 that certification.
Done this day, August 7, 2023.
/s/ Sondra J. Vanella
Administrative Law Judge
Transmitted by either mail, e-mail, or facsimile to:
Martín Quezada, Director
Registrar of Contractors
[email redacted]
KLB HomeCrafters, LLC
[email redacted]
Joseph Henry Pestel, Jr.
Dragon Electric
[email redacted]
By: OAH Staff