ALJDEC - Licensing

2023A-06227-NPC-ROC · Registrar of Contractors · 2023-11-27

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Reliable Portable Bathrooms,

COMPLAINANT,

v.

McCurdy Construction, LLC

License No. ROC 322920,

RESPONDENT.

No. 2023A-06227-NPC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: November 15, 2023

APPEARANCES: Jamie Runnion appeared on behalf of Complainant Reliable Portable Bathrooms. Respondent McCurdy Construction, LLC failed to appear.

ADMINISTRATIVE LAW JUDGE: Sondra J. Vanella

FINDINGS OF FACT

McCurdy Construction, LLC (“Respondent”) is the holder of License Number 322920 issued by the Arizona Registrar of Contractors (“Registrar”).

On or about May 30, 2023, Reliable Portable Bathrooms (“Complainant”) filed a Complaint against Respondent with the Registrar alleging that Respondent had failed to pay Complainant the sum of $7,686.21 for the portable restrooms that Complainant provided to several of Respondent’s jobsite locations.

The parties were unable to resolve their differences. The Registrar issued a Citation against Respondent for its alleged violation of A.R.S. § 32-1154(A)(10).

The matter was set for administrative hearing before the Office of Administrative Hearings on September 6, 2023, at 1:00 p.m. On the date and time set for hearing, Jamie Runnion, Billing Manager, appeared on behalf of Complainant. Michael McCurdy appeared on behalf of Respondent. The parties participated in a prehearing discussion outside of the presence of the Administrative Law Judge. Following that discussion, the parties jointly requested a sixty (60) day continuance of the hearing in order to provide Respondent with a further opportunity to pay the outstanding invoices to Complainant. Finding good cause, the request was granted.

On September 8, 2023, the Tribunal issued to the parties at their respective email addresses of record and confirmed at hearing, a Minute Entry Granting Continuance and Setting Hearing Via Google Meet. The Minute Entry advised the parties of the continued hearing date and time of November 15, 2023, at 1:00 p.m., and provided the correct Google Meet link for participation in the hearing either by video or phone.

On the date and at the time set for hearing, and after proper notice, Respondent failed to appear. After a grace period, the matter proceeded to hearing.

Ms. Runnion testified that Complainant contracted with Respondent on October 12, 2022, for the provision of portable restrooms at several of Respondent’s jobsites, including: i) Marconi Avenue; ii) North 58th Place; iii) East Ann Way; and iv) East Pistachio Street. Ms. Runnion testified that Respondent promised to make payments and informed Complainant that Respondent was just waiting to receive payments on the various projects. However, Respondent only made one payment for the first invoice on January 6, 2023, notwithstanding Complainant having contacted Respondent multiple times to request payment on the outstanding balance. Complainant retrieved the portable restrooms from the various jobsites in May 2023.

Respondent failed to appear for hearing and therefore, did not present any controverting evidence.

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 this matter 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.”

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 credible evidence presented at hearing established that Respondent owed a total of $7,686.21 for the portable restrooms provided by Complainant.

Respondent failed to appear, and as such, failed to establish by a preponderance of the evidence that it lacked the ability to pay Complainant for the services/materials provided.

Therefore, Complainant established that Respondent violated A.R.S. § 32-1154(A)(10) by failing to pay Complainant $7,686.21 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 Respondent’s License Number 322920 issued by the Registrar until it has provided to the Registrar, and the Registrar has accepted, documents that establish that it has paid Complainant $7,686.21 in certified funds.

It is further recommended that when and if the Registrar receives and accepts Respondent’s evidence that it has paid Complainant $7,686.21 in certified funds, the Registrar may close the Complaint in Case Number 2023-06227.

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, November 27, 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]

McCurdy Construction, LLC

[email redacted]

Reliable Portable Bathrooms

[email redacted]

[email redacted]

By: OAH Staff