ALJDEC - Licensing
2023A-09339-NPC-ROC · Registrar of Contractors · 2023-12-19
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
Desert State Shotcrete Inc.,
COMPLAINANT,
v.
A Team Masonry LLC,
License No. ROC 318321,
RESPONDENT.
No. 2023A-09339-NPC-ROC
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: November 29, 2023
APPEARANCES: Billy Joe Carnes and April Bencomo for Desert State Shotcrete Inc. (Complainant); Joe DaRosa for A Team Masonry LLC (Respondent).
ADMINISTRATIVE LAW JUDGE: Kay A. Abramsohn
EXHIBITS ADMITTED INTO EVIDENCE: ROC Administrative Record and Post-hearing filing.
_____________________________________________________________________
FINDINGS OF FACT
A Team Masonry LLC (Respondent) is the holder of License No. ROC 318321 issued by the Registrar of Contractors (Registrar).
On August 14, 2023, Desert State Shotcrete Inc. (Complainant) filed a Non-Payment Complaint Form (Complaint) against Respondent with the Registrar alleging that Respondent had failed to pay Complainant the sum of $8,257.50 for work performed and completed on July 18, 2023. Complainant sent Invoice 34282 to Respondent on July 21, 2023.
Respondent failed to resolve the matter informally.
On September 8, 2023, the Registrar issued a Citation for Alleged Violation of A.R.S. § 32-1154(A)(10).
On September 24, 2023, Respondent e-filed a response to the ROC stating that it pays on “Net-30” after receiving an invoice and stating that a check had been mailed to Complainant but Complainant was saying they had not received it. Respondent further stated that it did a stop payment “and a new check has been mailed.”
At hearing, Complainant indicated that, when it was contacting Respondent after the work was performed to collect payment, Respondent eventually blocked them from the phone and messaging, which caused Complainant to file the Complaint. By the date and time of the hearing, Complainant had not received payment on the invoice.
At hearing, Mr. DaRosa indicated he was “filling in” for Sarah DaRosa, the Qualifying Party. Mr. DaRosa stated that on “Monday” [the 27th] he had gone to UPS and mailed a cashier’s check from the bank to Complainant which was due to be received by Complainant by that day [the 29th].
On November 29, 2023 at 6:37 p.m., Complainant emailed the Tribunal advising and documenting that Complainant had received the mailing, which contained Respondent’s business check #1891 [dated October 21, 2023 in the amount of $8,257.50] from Respondent that had been mailed at UPS on Tuesday the 28th. Complainant requested that the case not be dismissed until the Respondent’s check cleared the bank.
As of the date of the hearing, the ROC public records documented that Respondent had previously resolved two cases (the most recent one in May of 2023) and that the instant case was the only open case.
On December 19, 2023, Complainant informed the Tribunal that Respondent’s check had cleared the bank.
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, at the time of the hearing, Respondent owed Complainant a total of $8,257.50 on the project.
At the hearing, Respondent failed to present or establish by any preponderance of evidence that it had lacked the ability to pay Complainant for the work performed or that it had not been paid sufficient funds on the projects for which Complainant’s services were performed.
Therefore, Complainant established at hearing that Respondent violated A.R.S. § 32-1154(A)(10) by failing to pay Complainant $8,257.50 for services and 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.
On December 19, 2023, Complainant advised the Tribunal that Complainant’s check had cleared the bank.
RECOMMENDed order
Based on the foregoing, it is recommended that the Registrar dismiss Complainant’s Complaint for the reason that the at-issue invoice has been paid.
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 19, 2023.
/s/ Kay A. Abramsohn
Administrative Law Judge
Transmitted electronically to:
Tom Cole
Director
Registrar of Contractors
Legal Department
[email redacted]
Respondent
A Team Masonry LLC
2432 W Peoria Ave Ste 1040
Phoenix, AZ 85029
[email redacted]
Complainant
Desert State Shotcrete Inc
39742 N Prince Ave
Queen Creek, AZ 85140
[email redacted]
By: OAH Staff