ALJDEC - Licensing
2023A-12279-NPC-ROC · Registrar of Contractors · 2024-02-13
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
Monterrey Tile AZ LLC,
COMPLAINANT
v.
New Image Landscape and Pools LLC
License No. ROC 247546,
RESPONDENT
No. 2023A-12279-NPC-ROC
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: February 5, 2024
APPEARANCES: Jessica Soto, Credit Manager, appeared on behalf of Complainant Monterrey Tile AZ LLC. Respondent did not appear.
ADMINISTRATIVE LAW JUDGE: Tammy L. Eigenheer
EXHIBITS ADMITTED INTO EVIDENCE: Hearing Packet submitted by the Registrar of Contractors
_____________________________________________________________________
FINDINGS OF FACT
New Image Landscape and Pools LLC (Respondent) is the holder of License No. 247546 issued by the Registrar of Contractors (Registrar).
On or about October 19, 2023, Monterrey Tile AZ LLC (Complainant) filed a Complaint against Respondent with the Registrar alleging that Respondent had failed to pay Complainant the sum of $6,298.11 for materials supplied.
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).
The Registrar referred the matter to the Office of Administrative Hearings, an independent state agency, for an evidentiary hearing.
The Registrar issued a Notice of Hearing, setting a hearing at 9:00 a.m. on February 5, 2024. The Registrar mailed copies of the Notice of Hearing to Respondent at its address and email address of record.
A December 20, 2023 order from the Office of Administrative Hearings advised the parties of how to connect to the hearing via Google Meet. The hearing was held via Google Meet on February 5, 2024.
Respondent did not request that the hearing be continued. Although the start of the hearing was delayed 15 minutes, Respondent did not appear through an authorized member, employee, or attorney. Consequently, Respondent did not present any evidence to defend its license.
Ms. Soto testified that the total due to Complainant was $75.11 on invoice number 7030944 dated February 9, 2023, and $6,223.00 on invoice number 7090164 dated June 12, 2023.
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.
The copies of the Notice of Hearing that the Registrar mailed to Respondent at its address and email address of record were reasonable and Respondent is deemed to have received notice of the hearing. A.R.S. §§ 41-1092.04 and 41-1092.05(D).
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 $6,298.11 for material supplied.
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 $6,298.11 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. 247546 issued by the Registrar until it has provided to the Registrar, and the Registrar has accepted, documents that establish that it has paid Complainant $6,298.11 in certified funds.
It is further recommended that when and if the Registrar receives and accepts Respondent’s evidence that it has paid Complainant $6,298.11 in certified funds, the Registrar may close the Complaint in Case No. 247546.
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 13, 2024.
/s/ Tammy L. Eigenheer
Administrative Law Judge
Transmitted by either mail, e-mail, or facsimile to:
Tom Cole, Director
Registrar of Contractors
David Stewart
New Image Landscape and Pools LLC
[email redacted]
Monterrey Tile AZ LLC
[email redacted]
By: OAH Staff