ALJDEC - Licensing
2023A-04969-NPC-ROC · Registrar of Contractors · 2023-12-12
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
The Sherwin Williams Company,
COMPLAINANT,
v.
Jack Of All Paints, LLC
License No. ROC 323025,
RESPONDENT.
No. 2023A-04969-NPC-ROC
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: July 17, 2023, with Status Update due November 20, 2023
APPEARANCES: James Reed, Esq. represented Complainant The Sherwin Williams Company. The Sherwin Williams Company’s Division Director, Karl Oswald, was present. Edmund Miller appeared on behalf of Respondent Jack Of All Paints, LLC.
ADMINISTRATIVE LAW JUDGE: Sondra J. Vanella
EXHIBITS ADMITTED INTO EVIDENCE: No Exhibits were offered. Administrative Notice was taken of the Agency Record.
FINDINGS OF FACT
Jack Of All Paints, LLC (“Respondent”) is the holder of License Number 323025, issued by the Arizona Registrar of Contractors (“Registrar”).
On or about April 27, 2023, The Sherwin Williams Company (“Complainant”) filed a Complaint against Respondent with the Registrar alleging that Respondent had failed to pay Complainant the sum of $21,882.62, representing multiple invoices for materials provided by Complainant to Respondent.
The parties were unable to resolve their differences, and Complainant requested an administrative hearing.
On May 8, 2023, 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 June 1, 2023, advising the parties that a hearing would convene before the Office of Administrative Hearings on July 17, 2023, at 9:00 a.m. On the date and time set for hearing. James Reed, Esq. represented Complainant. Complainant’s Division Director, Karl Oswald, was present. Edmund Miller appeared on behalf of Respondent.
After opening statements and during a recess outside of the presence of the Administrative Law Judge, the parties participated in a settlement discussion. As a result of that discussion, the parties reached a resolution, however, needed additional time in which to execute the resolution as it involved a payment plan over the course of a twelve (12) month period.
At the time of hearing, the parties stipulated that Respondent owed Complainant $21,196.44, and agreed that Respondent would make twelve (12) monthly payments in the amount of $1,766.37. The parties further stipulated that in the event Respondent defaulted, Complainant would notify the Office of Administrative Hearings and a Decision and Order would issue concluding that Respondent has violated the charged provision of the State’s contracting laws, and would recommend discipline be imposed upon Respondent’s license based on that violation.
Consequently, on July 18, 2023, the Tribunal issued a Minute Entry Granting Continuance and Setting Status Date on November 20, 2023.
On November 20, 2023, Complainant, through counsel, submitted a Status Report stating that Respondent breached the agreement of the parties by not making any of the agreed upon payments.
On November 22, 2023, the Tribunal inadvertently set this matter for continued hearing on February 2, 2024, at 1:00 p.m. Due to the hearing being erroneously set, the February 2, 2024 hearing date has been vacated from the calendar of the Office of Administrative Hearings.
On December 8, 2023, Complainant, through counsel, submitted a Request for Suspension of License, setting forth the following:
Pursuant to the Court’s Order dated July 18, 2023, The Sherwin Williams Company requests that a Decision and Order be issued due to Respondent’s default of the agreement reached at the hearing in this matter. No payments have been made since the ROC’s order at the conclusion of the hearing.
CONCLUSIONS OF LAW
This matter lies within the Registrar’s jurisdiction.
Complainant bears the burden of proof to establish Respondent’s statutory violations 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.
On July 17, 2023, Respondent stipulated that it owed Complainant $21,196.44 and that it would make twelve (12) equal monthly payments until that amount was paid in full. Counsel for Complainant avowed that Respondent failed to pay Complainant any amounts toward that outstanding balance.
Therefore, Complainant established that Respondent violated A.R.S. § 32-1154(A)(10) by failing to pay Complainant $21,196.44 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 Jack Of All Paints, LLC’s License Number 323025 issued by the Registrar until it has provided to the Registrar, and the Registrar has accepted, documents that establish that it has paid Complainant $21,196.44 in certified funds.
It is further recommended that when and if the Registrar receives and accepts Respondent’s evidence that it has paid Complainant $21,196.44 in certified funds, the Registrar may close the Complaint in Case Number 2023-04969.
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, December 12, 2023.
/s/ Sondra J. Vanella
Administrative Law Judge
Transmitted by either mail, e-mail, or facsimile to:
Tom Cole, Director
Registrar of Contractors
c/o Legal Department
[email redacted]
Jack of All Paints, LLC
[email redacted]
James B. Reed, Esq.
Udall Shumway, PLC
[email redacted]
By: OAH Staff