ALJDEC - Licensing

2023A-04290-NPC-ROC · Registrar of Contractors · 2023-08-16

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

AC Pro Inc.,

COMPLAINANT

v.

Summit Breeze Heating and Cooling LLC

License No. ROC 323300,

RESPONDENT

No. 2023A-04290-NPC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: July 27, 2023

APPEARANCES: Peggy Reyes, appeared on behalf of AC Pro Inc. Ernesto Arellano appeared on behalf of Summit Breeze Heating and Cooling LLC.

ADMINISTRATIVE LAW JUDGE: Brian Del Vecchio

FINDINGS OF FACT

Summit Breeze Heating and Cooling LLC (Respondent) is the holder of License No. 323300 issued by the Registrar of Contractors (Registrar).

On or about November 28, 2022, AC Pro Inc. (Complainant) filed a Complaint against Respondent with the Registrar alleging that Respondent had failed to pay Complainant the sum of $5,872.47 for air conditioning and heating supplies.

The parties were unable to resolve their differences, and Complainant requested an administrative hearing. The Registrar then issued a Citation for an alleged violation of Ariz. Rev. Stat. § 32-1154(A)(10).

Peggy Reyes testified on behalf of Complainant that the total due to Complainant was $5,872.47. Ms. Reyes testified as to the specifics of the 8 unpaid invoices.

Ernesto Arellano testified on behalf of Respondent they did receive and used Complainant’s supplies, however, due to the rising cost, inflation, and serious health problems he could not pay Complainant’s invoices. Mr. Arellano further testified Respondent had subsequently filed for bankruptcy. At the time of the hearing, Mr. Arellano engaged the services a bankruptcy attorney on behalf of Respondent, but the filing had not been approved or finalized.

Respondent did assert that it lacked the capacity to pay the amount Complainant asserted was due.

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.

A preponderance of the evidence is “such proof as convinces the trier of fact that the contention is more probably true than not.”

Ariz. Rev. Stat. § 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 $5,872.47 for air conditioning and heating supplies.

Respondent failed to establish by a preponderance of the evidence that it lacked the ability to pay Complainant for the work performed. While it may be true Respondent plans to complete its filing of bankruptcy, it provided no evidence the bankruptcy was approved.

Therefore, Complainant established that Respondent violated Ariz. Rev. Stat. § 32-1154(A)(10) by failing to pay Complainant $5,872.47 for services or materials rendered in connection with Respondent’s contracting business.

Based upon Respondent’s violation of the provisions of Ariz. Rev. Stat. § 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: 323300 issued by the Registrar until it has provided to the Registrar, and the Registrar has accepted, documents that establish that it has paid Complainant $5,872.47 in certified funds.

It is further recommended that when and if the Registrar receives and accepts Respondent’s evidence that it has paid Complainant $5,872.47 in certified funds, the Registrar may close the Complaint in Case No. 2023-04290.

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 16, 2023.

/s/ Brian Del Vecchio

Administrative Law Judge

Transmitted by either mail, e-mail, or facsimile to:

Martín Quezada, Director

Registrar of Contractors

[email redacted]

AC Pro Inc

[email redacted]

Summit Breeze Heating and Cooling LLC

[email redacted]

By: OAH Staff