ALJDEC - Licensing
2023A-12903-NPC-ROC · Registrar of Contractors · 2024-03-03
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
All Day Heating & Air Conditioning LLC,
COMPLAINANT
v.
MAXBILT, INC.
DBA: Rob Miller
License No. ROC 341289,
RESPONDENT
No. 2023A-12903-NPC-ROC
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: February 13, 2023, 1:00 P.M.
APPEARANCES: Steven Kipp, Owner, appeared on behalf of Complainant; Rob Miller, Owner and President, appeared on behalf of Respondent
ADMINISTRATIVE LAW JUDGE: Roger A. Geddes
EXHIBITS ADMITTED INTO EVIDENCE: Complainant’s Exhibit letters A - E; none submitted by Respondent
_____________________________________________________________________
FINDINGS OF FACT
Background and Procedure
1. MAXBILT, INC. (Respondent), is the holder of License Numbers 341289 and 118265 issued by the Registrar of Contractors (Registrar).
2. On or about November 9, 2023, All Day Heating & Air Conditioning, LLC (Complainant), filed a Complaint against Respondent with the Registrar alleging that Respondent owed Complainant for various invoices in the total amount of $30,837.52 for HVAC equipment provided by Complainant.
3. On December 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 13, 2024, at 1:00 P.M. At the hearing, Complainant presented the testimony of Steven Kipp, Owner; Respondent presented the testimony of Robb Miller, Owner and President. The Tribunal admitted Complainant’s Exhibit letters A - E; no exhibits were submitted by Respondent.
5 Steven Kipp testified on behalf of Complainant, as herein relevant to the Citation, that Respondent had failed to pay the amount of $30,837.52 for HVAC equipment and installation.
6. Robb Miller testified on behalf of Respondent, as herein relevant, that he did not dispute the amount owed, but stated it arose in connection with matters concerning his partner.
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.
8. Pursuant to Arizona Administrative Code Rule 4-9-117, administrative notice is taken of the Registrar’s public website which reflects that License No. 341289 was first issued on October 18, 2022, and was suspended as of January 3, 2024. The site also reflects three open cases, no disciplined cases, and no resolved/settled cases. Administrative notice is also taken of the Registrar’s public website which reflects that License No. 118265 was first issued on October 23, 1996. The site also reflects one open case, no disciplined cases, and two resolved/settled cases.
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. The suspended status of Respondent’s license does not deprive Complainant of its right to prosecute her complaint against Respondent or prevent the Registrar from determining the merits of Complainant’s complaint. See A.R.S. § 32-1154(C) (“The expiration, cancellation, suspension or revocation of a license . . . shall not deprive the registrar of jurisdiction to proceed with any investigation of or action or disciplinary proceeding against such license, or to render a decision suspending or revoking such a license . . .”).
5. 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.
6. A.R.S. § 32-1154(A)(10). Complainant has satisfied its burden to demonstrate that Respondent has failed to pay Complainant the amount of $30,837.52 that had become due for materials or services rendered in connection with Respondent’s operations as a contractor. Respondent did not dispute the amount. 7. 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 341289 and 118265 are suspended until the Registrar receives and accepts written verification that Respondent has paid $30,837.52 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 $30,837.52 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, March 4, 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]
All Day Heating & Air Conditioning, LLC
10249 E. Carmel Ave.
Mesa, AZ 85208
[email redacted]
Rob Miller
Maxbilt, Inc.
40483 N. High Noon Way
Anthem, AZ 85086
[email redacted]
By: OAH Staff