ALJDEC - Licensing
2023A-04464-NPC-ROC · Registrar of Contractors · 2023-07-24
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
Mardian Concrete Pumping Co,
COMPLAINANT
v.
Spear E Enterprises LLC
DBA: Spear E Contracting
License No. ROC 323271,
RESPONDENT
No. 2023A-04464-NPC-ROC
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: July 3, 2023, 1:00 P.M.
APPEARANCES: Yvette Rodriguez, Credit Manager, appeared on behalf of Complainant; no appearance was made on behalf of Respondent
ADMINISTRATIVE LAW JUDGE: Roger Geddes
_____________________________________________________________________
FINDINGS OF FACT
Background and Procedure
1. Spear E Enterprises, LLC (Respondent), is the holder of License Number 323271 issued by the Registrar of Contractors (Registrar).
2. On or about April 17, 2023, Mardian Concrete Pumping Co. (Complainant) filed a Complaint against Respondent with the Registrar alleging that Respondent owed Complainant the sum of $8,631.78. This amount represented nine unpaid invoices relating to Complainant’s supply of concrete to Respondent.
3. On May 3, 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 July 3, 2023, at 1:00 P.M. The Registrar mailed a copy of the Notice of Hearing to Respondent on or about May 23, 2023, at its address of record.
5. At the hearing, Complainant appeared and presented the testimony of Yvette Rodriguez, Credit Manager. No appearance was made on behalf of Respondent.
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 Yvette Rodriguez, Credit Manager, testified on behalf of Complainant that Respondent had paid all but $3,631.78 of the outstanding principal amount that had since come due for concrete supplied.
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. 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.
5. A.R.S. § 32-1154(A)(10). Complainant has satisfied its burden to demonstrate that Respondent has failed to pay Complainant the amount of $3,631.78 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.
6. 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 323271 is suspended until the Registrar receives and accepts written verification that Respondent has paid $3,631.78 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 $3,631.78 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, July 24, 2023.
/s/ Roger Geddes
Administrative Law Judge
Transmitted electronically to:
Martín Quezada, Director
Registrar of Contractors
c/o Legal Department
1700 W. Washington Street, Suite 105
Phoenix, AZ 85007
[email redacted]
Spear E Enterprises LLC
DBA: Spear E Contracting
5606 S. Stockton Rd.
Safford, AZ 85546
[email redacted]
Mardian Concrete Pumping Co.
221 S. 35th Ave.
Phoenix, AZ 85009
[email redacted]
By: OAH Staff