ALJDEC - Licensing

2023A-09747-NPC-ROC · Registrar of Contractors · 2024-09-19

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

The Sherwin-Williams Company,

COMPLAINANT

v.

B W Insulation LLC

License No. ROC 325570,

RESPONDENT

No. 2023A-09747-NPC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: November 29, 2023, with the record held open until August 30, 2024

APPEARANCES: Complainant The Sherwin-Williams Company was represented by James Reed. Rene Osiris Navarrete, Qualifying Party, appeared on behalf of Respondent B W Insulation LLC.

ADMINISTRATIVE LAW JUDGE: Tammy L. Eigenheer

EXHIBITS ADMITTED INTO EVIDENCE: Administrative Notice was taken of the Hearing Packet submitted by the Registrar of Contractors.

_____________________________________________________________________

FINDINGS OF FACT

B W Insulation LLC (Respondent) is the holder of License No. 325570 issued by the Registrar of Contractors (Registrar).

On or about August 22, 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 $25,189.30 for materials supplied.

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

The parties stipulated that the amount due to Complainant as of the date of the hearing was $22,689.30.

At the time of the hearing, the parties entered into a settlement agreement in which Respondent would make monthly payments to Complainant after the hearing to bring the balance owed to zero by August 2024.

Since the hearing date, neither party has advised the Office of Administrative Hearings if Respondent had fully complied with the terms of the settlement agreement or if a balance remained owed to Complainant.

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 $22,689.30 for materials provided as of the date of the hearing.

Therefore, Complainant established that Respondent violated A.R.S. § 32-1154(A)(10) by failing to pay Complainant $22,689.30 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. 325570 issued by the Registrar until it has provided to the Registrar, and the Registrar has accepted, documents that establish that it has paid Complainant $22,689.30 in certified funds since November 29, 2023.

It is further recommended that when and if the Registrar receives and accepts Respondent’s evidence that it has paid Complainant $22,689.30 in certified funds, the Registrar may close the Complaint in Case No. 2023-09747.

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 19, 2024.

/s/ Tammy L. Eigenheer

Administrative Law Judge

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

Tom Cole, Director

Registrar of Contractors

James B. Reed

Udall Shumway PLC

[email redacted]

B W Insulation LLC

[email redacted]

By: OAH Staff