ALJDEC - Licensing

2023A-08677-NPC-ROC · Registrar of Contractors · 2023-11-20

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Mike's Drilling, LLC,

COMPLAINANT

v.

Saguaro Well and Pump, LLC

License No. ROC 311282,

RESPONDENT

No. 2023A-08677-NPC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: November 1, 2023

APPEARANCES: Michael Lister, Owner and Qualifying Party, appeared on behalf of Complainant Mike’s Drilling, LLC. John Monasmith, Owner and Qualifying Party, appeared on behalf of Respondent Saguaro Well and Pump, LLC.

ADMINISTRATIVE LAW JUDGE: Tammy L. Eigenheer

FINDINGS OF FACT

Saguaro Well and Pump, LLC (Respondent) is the holder of License No. 311282 issued by the Registrar of Contractors (Registrar).

On or about July 31, 2023, Mike’s Drilling, LLC (Complainant) filed a Complaint against Respondent with the Registrar alleging that Respondent had failed to pay Complainant the sum of $23,453.50 for drilling services 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. Lister testified that the total due to Complainant was $23,453.50. Mr. Lister stated that during a drilling project, the team encountered mud, which resulted in an additional charge pursuant to the contract. Mr. Lister introduced into the record the text conversation with Mr. Monasmith in which Mr. Monasmith acknowledged the mud drilling was required.

Mr. Monasmith initially stated that he did not authorize the mud drilling and that had he been informed, the client would have abandoned the project. When faced with the text message exchange, Mr. Monasmith acknowledged that he received the message and responded, but asserted that he had no memory of the conversation. Mr. Monasmith stated that he lost a child three years ago and he spent the next two years messing up his business and has spent the last year trying to fix everything. Mr. Monasmith admitted he should have closed his business at that time, but he was trying to make good on everything.

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 $23,453.50 for drilling services 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 $23,453.50 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 No. 311282 issued by the Registrar until it has provided to the Registrar, and the Registrar has accepted, documents that establish that it has paid Complainant $23,453.50 in certified funds.

It is further recommended that when and if the Registrar receives and accepts Respondent’s evidence that it has paid Complainant $23,453.50 in certified funds, the Registrar may close the Complaint in Case No. 2023-08677.

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 20, 2023.

/s/ Tammy L. Eigenheer

Administrative Law Judge

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

Tom Cole, Director

Registrar of Contractors

Saguaro Well and Pump LLC

[email redacted]

Mike's Drilling LLC

[email redacted]

By: OAH Staff