ALJDEC - Licensing
2023A-02288-NPC-ROC · Registrar of Contractors · 2023-10-02
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
Terriquez Tile & Remodeling LLC,
COMPLAINANT,
v.
Maxum Design and Development Company
dba Maxum Construction,
License No. ROC 202770,
RESPONDENT.
No. 2023A-02288-NPC-ROC
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: September 11, 2023 (Virtual)
APPEARANCES: Jesus Terriquez and Maricruz Bustos on behalf of Complainant. No person appeared on behalf of Respondent.
ADMINISTRATIVE LAW JUDGE: Kay A. Abramsohn
_____________________________________________________________________
FINDINGS OF FACT
Maxum Design and Development Company dba Maxum Construction (Respondent) holds License No. 202770, which was issued by the Registrar of Contractors (Registrar) in December 2004.
On or about February 22, 2023, Terriquez Tile and Remodeling LLC (Complainant) filed a Non-Payment Complaint Form (Complaint) against Respondent with the Registrar alleging that Respondent had failed to pay Complainant the remaining sum of $19,800.00 for work performed in October of 2022 [Invoice INV0116, $29,800.00].
Complainant had been paid $10,000.00 on November 4, 2022; however, the remaining amount was not paid to Complainant.
Complainant had previously performed work for Respondent on three other projects and had been paid in full on those projects.
After Complainant requested an administrative hearing, on April 13, 2023, the Registrar issued a Citation to Respondent for the alleged violation of A.R.S. § 32-1154(A)(10).
Counsel for Respondent filed an Answer on April 28, 2023, alleging that the parties had negotiated a settlement but also alleging that Complainant had reneged and pursued the ROC Complaint.
The matter was not resolved informally between the parties.
At the time of the hearing, and for fifteen minutes thereafter, Respondent did not appear.
At hearing, Mr. Terriquez testified that the work had been completed without any workmanship issues or punch-list items. Mr. Terriquez noted that there had been delays in the overall project and that, towards the end of the project, other subcontractors were complaining about not being paid.
At hearing, homeowner Pat Frazier testified that Respondent had been paid in full on the Frazier contract with Respondent.
According to the Registrar’s public record, Respondent had multiple Complaints filed against its license; Respondent’s license was suspended in May 2023 and revoked in July 2023.
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 hearing evidence established that Respondent owed a remaining total of $19,800.00 to Complainant for the work Complainant performed at the Frazier home and that Respondent has received payment in full for the Frazier home project.
Respondent failed to appear to present any evidence with regard to the matter and failed to demonstrate any statutory justification or excuse for failing to issue payment to Complainant. Respondent failed to establish by a preponderance of the evidence that it lacked the ability to pay Complainant for the work performed or that it had not received sufficient payment for the particular construction work project or operation for which Complainants services rendered. Therefore, Complainant established that Respondent violated A.R.S. § 32-1154(A)(10) by failing to pay Complainant $19,800.00 for services and 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, on the effective date of the Registrar’s final order, the Registrar revoke Maxum Design and Development Company dba Maxum Construction License No. 202770 until Respondent has provided to the Registrar, and the Registrar has accepted, documents that establish that Respondent has paid Complainant $19,800.00 in certified funds.
It is further recommended that when and if the Registrar receives and accepts Respondent’s evidence that it has paid Complainant $19,800.00 in certified funds, the Registrar continue to maintain the Maxum Design and Development Company dba Maxum Construction License No. 202770 in a revoked status.
No future license shall be issued to any entity consisting of persons associated with Respondent, as defined in A.R.S. § 32-1101(A)(7), unless Respondent tenders payment of the outstanding $19,800.00 to Complainant.
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, October 2, 2023.
/s/ Kay A. Abramsohn
Administrative Law Judge
Transmitted electronically to:
Cindy Casaus, Interim Director
Registrar of Contractors
c/o Legal Department
[email redacted]
Terriquez Tile & Remodeling LLC
[email redacted]
[email redacted]
Mark D. Chester, Esq.
Chester & Shein, PC
[email redacted]
Maxum Design and Development Company
DBA: Maxum Construction
ATTN: Jeff Beckham
PO Box 2420
Gilbert, AZ 85299
[email redacted]
Maxum Design and Development Company
DBA: Maxum Construction
ATTN: Jeff Beckham
202 W Lone Cactus Dr Ste 6
Phoenix, AZ 85027
By: OAH Staff