ALJDEC - Licensing

2023A-06533-NPC-ROC · Registrar of Contractors · 2023-09-27

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Abushalfeh Construction Company LLC,

COMPLAINANT

v.

10-4 Utility Construction LLC

License No. ROC 338000,

RESPONDENT

No. 2023A-06533-NPC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: September 7, 2023

APPEARANCES: Anwar Abushalfeh, Owner and Qualifying Party, appeared on behalf of Complainant Abushalfeh Construction Company LLC. Karen Martinez, Project Coordinator, appeared on behalf of Respondent 10-4 Utility Construction LLC.

ADMINISTRATIVE LAW JUDGE: Tammy L. Eigenheer

_____________________________________________________________________

FINDINGS OF FACT

10-4 Utility Construction LLC (Respondent) is the holder of License No. 338000 issued by the Registrar of Contractors (Registrar).

On or about June 7, 2023, Abushalfeh Construction Company LLC (Complainant) filed a Complaint against Respondent with the Registrar alleging that Respondent had failed to pay Complainant the sum of $134,266.24 for work performed.

The parties were unable to resolve their differences, and Complainant requested an administrative hearing. The Registrar then issued a Citation for Alleged Violation of A.R.S. § 32-1154(A)(10).

Mr. Abushalfeh testified that the total due to Complainant at the time of the hearing was $28,081.00. Mr. Abushalfeh stated that the parties had reached an agreement to reduce the amount owed and Respondent had made additional payments towards the total balance. Mr. Abushalfeh indicated that Respondent planned to pay the total amount due within a week, but the payment had not been made by the time of the hearing. Mr. Abushalfeh stated he agreed to accept $50,000.00 less than amount due to settle the amount. Mr. Abushalfeh showed a copy of an August 26, 2023 check from Respondent that included in the notes that the balance due was $38,083.275 and the note was initialed by Respondent. Mr. Abushalfeh stated that Respondent then made a $10,000.00 payment on September 1, 2023, which resulted in a total amount due of $28,083.275.

Ms. Martinez testified that the parties’ contract required that Complainant and Respondent would split the profits in half on the project, so the balance Ms. Abushalfeh was claiming was due should be divided in half. Ms. Martinez asserted that Complainant was double billing Respondent, so she was required to double check all the invoices and eliminate certain line items. Ms. Martinez indicated that there were possible back charges that would need to be taken into account for necessary warranty work, but Ms. Martinez was unable to provide any specific amount of those possible charges. Ms. Martinez admitted that Respondent owed Complainant $12,950.84 as of the date of the hearing. Ms. Martinez stated that, due to the disputes, Respondent was unable to pay Complainant “blindly.”

Respondent did not 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. See A.A.C. R2-19-119.

A preponderance of the evidence is “such proof as convinces the trier of fact that the contention is more probably true than not.” Morris K. Udall, Arizona Law of Evidence § 5 (1960).

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 evidence established that Respondent owed a total of $28,081.00 for work performed.

Respondent failed to establish by a preponderance of the evidence that it lacked the ability to pay Complainant for the work performed.

Therefore, Complainant established that Respondent violated A.R.S. § 32-1154(A)(10) by failing to pay Complainant $28,081.00 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 10-4 Utility Construction LLC’s License No. 338000 issued by the Registrar until it has provided to the Registrar, and the Registrar has accepted, documents that establish that it has paid Complainant $28,081.00 in certified funds.

It is further recommended that when and if the Registrar receives and accepts Respondent’s evidence that it has paid Complainant $28,081.00 in certified funds, the Registrar may close the Complaint in Case No. 2023-06533.

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 27, 2023.

/s/ Tammy L. Eigenheer

Administrative Law Judge

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

Cindy Casaus, Interim Director

Registrar of Contractors

Abushalfeh Construction Company LLC

[email redacted]

10-4 Utility Construction LLC

[email redacted]

By: OAH Staff