ALJDEC - Licensing

2023A-11216-NPC-ROC · Registrar of Contractors · 2024-02-26

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Az Century Deck Inc,

COMPLAINANT

Unity Pools LLC

License No. ROC 317823,

RESPONDENT

No. 2023A-11216-NPC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: February 8, 2023, 9:00 A.M.

APPEARANCES: Ezequiel Moreno, Owner, appeared on behalf of Complainant; Travis Scott, Owner, appeared on behalf of Respondent

ADMINISTRATIVE LAW JUDGE: Roger A. Geddes

EXHIBITS ADMITTED INTO EVIDENCE: None submitted.

_____________________________________________________________________

FINDINGS OF FACT

Background and Procedure

1. Unity Pools, LLC (Respondent), is the holder of License Number 317823 issued by the Registrar of Contractors (Registrar).

2. On or about September 25, 2023, Az Century Deck, Inc. (Complainant), filed a Complaint against Respondent with the Registrar alleging that Respondent owed Complainant for various invoices in the total amount of $39,313.00 for shotcrete work performed for Respondent.

3. On November 1, 2023, the Registrar then issued a Citation for Alleged Violation of A.R.S. § 32-1154(A)(10) for the alleged failure by Respondent to pay monies in excess of $750.00 when due for materials or services rendered in connection with Respondent’s operations as a contractor. The Registrar referred the matter to the Office of Administrative Hearings, an independent state agency, for an evidentiary hearing.

4. The Registrar issued a Notice of Hearing that set a hearing after a continuance for February 8, 2024, at 9:00 A.M. At the hearing, Complainant presented the testimony of Ezequiel Moreno, Owner; Respondent presented the testimony of Travis Scott, Owner. Neither party submitted exhibits to the Tribunal.

5 Ezequiel Moreno testified on behalf of Complainant, as herein relevant to the Citation, that Respondent agreed to the invoice prices and that there was never any objections to the invoices. He stated he reduced the balance by $1,915.00 for a fix on head repair Respondent claimed was made, and by $2,000.00 for a payment Respondent made on January 22, 2024.

6. Travis Scott testified on behalf of Respondent, as herein relevant, that he disputed the amounts with the yardage and quantities submitted compared to their program software. He also stated there were issues with the shotcrete.

7. There was no claim that Respondent lacked the capacity to pay or that Respondent had not received sufficient monies as payment for the particular construction work project or operation for which Complainant’s services or materials were rendered.

CONCLUSIONS OF LAW

1. The Registrar has jurisdiction over this matter, pursuant to A.R.S. § 32-1101, et seq., which authorizes the Registrar to impose disciplinary sanctions against licenses for violations of A.R.S. § 32-1154.

2. 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 preponderance of the evidence. See Arizona Administrative Code Rule 2-19-119.

3. To warrant such sanctions by the Registrar, a Complainant must demonstrate by a preponderance of the evidence that Respondent violated the statutory section cited. Proof by a “preponderance” means that “the evidence is sufficient to persuade the finder of fact that the proposition is more likely true than not.” In re: Arnold and Baker Farms, 177 B.R. 648 (9th Cir. BAP (Ariz.) 1994). See also Culpepper v. State of Arizona, 187 Ariz. 431, 930 P.2d 508 (App. 1996). It is “evidence which is of greater weight or more convincing than the evidence which is offered in opposition to it; that is, evidence which as a whole shows that the fact sought to be proved is more probable than not.” BLACK’S LAW DICTIONARY 1182 (Rev. 6th ed. 1990).

4. A.R.S. § 32-1154(A)(10) included 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.

5. A.R.S. § 32-1154(A)(10). Complainant has satisfied its burden to demonstrate that Respondent has failed to pay Complainant the amount of $35,398.00 (after crediting the $2,000.00 payment and $1,915.00 chargeback) that had become due for materials or services rendered in connection with Respondent’s operations as a contractor. While Respondent contended there were deficiencies in the project, no evidence was submitted to substantiate that claim

6. In this matter, Complainant has established that Respondent’s license should be disciplined for a violation of A.R.S. § 32-1154(A)(10).

RECOMMENDED ORDER

Based on the foregoing, it is recommended that within seven (7) days of the effective date of this order, Respondent’s License Number 317823 is suspended until the Registrar receives and accepts written verification that Respondent has paid $35,398.00 to Complainant in certified funds.

It is further recommended that if and when the Registrar receives and accepts Respondent’s evidence that it has paid Complainant $35,398.00 in certified funds, the Registrar may close this Complaint.

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, February 26, 2024.

/s/ Roger Geddes

Administrative Law Judge

Transmitted electronically to:

Tom Cole

Director

Registrar of Contractors

c/o Legal Department

1700 W. Washington Street, Suite 105

Phoenix, AZ 85007

[email redacted]

Az Century Deck Inc

[email redacted]

Unity Pools LLC

[email redacted]

By: OAH Staff