ALJDEC - Licensing
2023A-03089-NPC-ROC · Registrar of Contractors · 2023-09-04
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
Trafficade Service, LLC,
COMPLAINANT
v.
AFC-AZ Contracting LLC
License No. ROC 289417,
RESPONDENT
No. 2023A-03089-NPC-ROC
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: August 14, 2023, 9:00 A.M.
APPEARANCES: Erika L. Johnsen, Esq., appeared on behalf of Complainant; no appearance was made on behalf of Respondent
ADMINISTRATIVE LAW JUDGE: Roger A. Geddes
_____________________________________________________________________
FINDINGS OF FACT
Background and Procedure
1. AFC-AZ Contracting, LLC (Respondent), is the holder of License Number 289417 issued by the Registrar of Contractors (Registrar).
2. On or about March 14, 2023, Trafficade Service, LLC (Complainant), filed a Complaint against Respondent with the Registrar alleging that Respondent owed Complainant the sum of $64,487.26. This amount represented eighteen unpaid invoices dated between March and November 2022 relating to Complainant’s supply of traffic control devices to Respondent.
3. On April 18, 2023, the Registrar then issued a Citation for Alleged Violation of A.R.S. § 32-1154(A)(10) for the alleged failure by Respondent to pay monies in excess of $750.00 when due for materials or services rendered in connection with Respondent’s operations as a contractor. The Registrar referred the matter to the Office of Administrative Hearings, an independent state agency, for an evidentiary hearing.
4. The Registrar issued a Notice of Hearing that set a hearing for June 26, 2023, at 1:00 P.M. The Registrar mailed a copy of the Notice of Hearing to Respondent on or about May 15, 2023, at its address of record. The matter was continued to August 14, 2023, at 9:00 A.M. at the request of the parties to attempt to resolve the matter. A Minute Entry - Granting Continuance was sent to Respondent at its address of record on or about June 26, 2023, advising of the August 14, 2023, hearing date.
5. At the hearing, Complainant appeared and presented the testimony of Antoinette Rodriguez, Billing and Collection Manager. No appearance was made on behalf of Respondent. The Tribunal received and admitted Complainant’s Exhibit numbers 1 - 5; Respondent did not submit any exhibits.
6. Although the commencement of the hearing was delayed approximately 20 minutes, Respondent did not appear at any time during the hearing through an authorized officer, employee, attorney, or any other person. Consequently, Respondent did not present any evidence to defend its license.
7 Antoinette Rodriguez testified on behalf of Complainant as to the outstanding invoices that were due that she indicated were never disputed by Respondent. She further testified that Respondent made a $12,000.00 payment toward the outstanding invoices but has made no further payments.
CONCLUSIONS OF LAW
1. The Registrar has jurisdiction over this matter, pursuant to A.R.S. § 32-1101, et seq., which authorizes the Registrar to impose disciplinary sanctions against licenses for violations of A.R.S. § 32-1154.
2. 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 preponderance of the evidence. See Arizona Administrative Code Rule 2-19-119.
3. To warrant such sanctions by the Registrar, a Complainant must demonstrate by a preponderance of the evidence that Respondent violated the statutory section cited. Proof by a “preponderance” means that “the evidence is sufficient to persuade the finder of fact that the proposition is more likely true than not.” In re: Arnold and Baker Farms, 177 B.R. 648 (9th Cir. BAP (Ariz.) 1994). See also Culpepper v. State of Arizona, 187 Ariz. 431, 930 P.2d 508 (App. 1996). It is “evidence which is of greater weight or more convincing than the evidence which is offered in opposition to it; that is, evidence which as a whole shows that the fact sought to be proved is more probable than not.” BLACK’S LAW DICTIONARY 1182 (Rev. 6th ed. 1990).
4. The copy of the Notice of Hearing that the Registrar sent to Respondent at its address of record and the follow-up continuance notice were reasonable and Respondent is deemed to have received such notices. A.R.S. §§ 41-1092.4 and 41-1092.05(D).
5. A.R.S. § 32-1154(A)(10) included 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.
6. A.R.S. § 32-1154(A)(10). Complainant has satisfied its burden to demonstrate that Respondent has failed to pay Complainant the amount of $52,487.26 (after crediting the $12,000.00 payment) that had become due for materials or services rendered in connection with Respondent’s operations as a contractor. No evidence was presented to dispute this or any other amount.
7. In this matter, Complainant has established that Respondent’s license should be disciplined for a violation of A.R.S. § 32-1154(A)(10).
RECOMMENDED ORDER
Based on the foregoing, it is recommended that within seven (7) days of the effective date of this order, Respondent’s License Number 289417 is suspended until the Registrar receives and accepts written verification that Respondent has paid $52,487.26 to Complainant in certified funds.
It is further recommended that if and when the Registrar receives and accepts Respondent’s evidence that it has paid Complainant $52,487.26 in certified funds, the Registrar may close this Complaint.
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, September 3, 2023.
/s/ Roger Geddes
Administrative Law Judge
Transmitted by either mail, e-mail, or facsimile to:
Martín Quezada
Director
Registrar of Contractors
c/o Legal Department
1700 W. Washington Street, Suite 105
Phoenix, AZ 85007
[email redacted]
Erika L. Johnsen, Esq.
LANG & KLAIN PLC
[email redacted]
AFC-AZ Contracting LLC
[email redacted]
By: OAH Staff