ALJDEC - Licensing

2024A-03859-NPC-ROC · Registrar of Contractors · 2024-07-26

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Custom Landscape Materials,

COMPLAINANT,

Premier Remediation Services LLC,

License No. ROC 296649,

RESPONDENT.

No. 2024A-03859-NPC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: July 9, 2024

APPEARANCES: Sam Schippers, Owner, and Tammy Welty, Billing person, appeared and represented Custom Landscape Materials (CLM) dba West Valley Rock. No person appeared representing Premier Remediation Services LLC.

ADMINISTRATIVE LAW JUDGE: Kay A. Abramsohn

EXHIBITS ADMITTED INTO EVIDENCE: ROC Notice of Hearing Packet (Administrative Record or AR); Complainant’s documents (36 undesignated pages).

_____________________________________________________________________

FINDINGS OF FACT

Premier Remediation Services LLC (Respondent) is the holder of License No. 296649, A General Engineering, issued by the Arizona Registrar of Contractors (Registrar) in April of 2015.

Complainant Custom Landscape Materials (CLM) dba West Valley Rock worked with Respondent on multiple projects. Under the parties’ credit agreement, payments were due from Respondent on a Net 30-day basis.

On or about March 27, 2024, the Registrar received a Non-Payment Complaint against Respondent from Complainant alleging nonpayment in the amount of $101,717.50.

On April 24, 2024, the Registrar issued a Citation against Respondent, charging the possible violation of A.R.S. § 32-1154(A)(10), failure to pay monies in excess of $750 when due for materials or services rendered in connections with a licensee’s operations as a contractor.

The matter was not resolved informally between the parties.

The Registrar referred the matter to the Office of Administrative Hearings, an independent state agency, for an evidentiary hearing.

On May 30, 2024, the Registrar issued its Notice of Hearing, setting a hearing to convene at 9:00 a.m. on July 9, 2024. The Registrar mailed copies of the Notice of Hearing to Respondent at the address and email address of record.

On or about June 4, 2024, the Office of Administrative Hearings issued an order by email advising the parties the hearing would be conducted virtually by videoconference or telephone via Google Meet and providing the instructions to connect to the hearing.

The hearing was convened and conducted through Google Meet on July 9, 2024.

Respondent did not appear by videoconference or telephone and had not previously requested that the hearing be continued. Although the start of the hearing was delayed 15 minutes, Respondent did not appear. Consequently, Respondent did not present any evidence to defend the allegations or defend his license.

At hearing, Ms. Welty reviewed for the hearing record the multiple invoices that were sent to Respondent, noting that some of them had been paid since the filing of the Complaint. At the time of the hearing, a total of $82,963.53 remained unpaid on the invoices. Seven of the invoices remaining unpaid were for one particular project, Sossaman 202 Industrial Park; the other four were two each on two other projects.

Complainant indicated that, at some point, Respondent had asked for [copies of] the “load tickets.” Ms. Welty testified that all the tickets had been provided to Respondent, but Respondent had not made payment on the remaining invoices.

Complainant indicated that communication between the parties had become poor and that Complainant had last heard from Respondent about one month before the hearing when Respondent began a new project. Complainant indicated that Respondent had stated that he would pay Respondent; However, Mr. Schippers testified that Respondent had never before taken this long to pay on invoices.

Administrative notice is taken of Respondent’s License record as of July 25, 2024. Such License record reflects that Respondent’s License No. 296649 was first issued on April 2, 2015 and was suspended effective March 1, 2024. The License record also reflects that there are two open complaints against Respondent’s license, one of which is the instant case.

Since the day of the hearing, Complainant has not notified the Tribunal that Respondent has made any payment, either in full or in part.

CONCLUSIONS OF LAW

This matter lies within the Registrar’s jurisdiction. See A.R.S. § 32-1101 et seq.

The copy of the Notice of Hearing that the Registrar mailed to Respondent at Respondent’s 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).

Complainant bears the burden of proof to establish Respondent’s statutory violations by a preponderance of the evidence. See A.R.S. § 41-1092.07(G)(2); A.A.C. R2-19-119(A) and A.A.C. R2-19-119(B)(1); see also Vazzano v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952). “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).

The evidence of record established that Complainant provided materials to Respondent for projects on which Respondent was working and, further, that Respondent failed to make payment on some of Complainant’s invoices for the materials supplied. Respondent failed to appear and present any evidence to the contrary or support any defense to the non-payment allegation. Therefore, the evidence of record and Complainant established that Respondent is in violation of A.R.S. § 32-1154(A)(10).

RECOMMENDED ORDER

Based on the foregoing, it is recommended that on the effective date of the Registrar’s final order, in the absence of evidentiary proof from Complainant that Respondent has paid the remaining unpaid balance to Complainant in full, the Registrar shall suspend Respondent’s License No. 296649, effective on such deadline date.

It is further recommended that the Registrar require Respondent to pay the sum of $500.00 as a civil penalty pursuant to A.R.S. § 32-1154(E).

It is further recommended that if Respondent fails to pay the entire amount of the civil penalty on or before thirty days following the effective date of the Registrar’s final order, the Registrar shall revoke Respondent’s license, effective on such deadline date. No future license shall be issued to any entity consisting of persons associated with Respondent, as defined in A.R.S. § 32-1101(A)(5), unless Respondent tenders payment of any outstanding prior civil penalty.

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.

-54864001

001

-137160-45720000Done this day, June 26, 2024.

/s/ Kay A. Abramsohn

Administrative Law Judge

Transmitted electronically to:

Tom Cole, Director

Registrar of Contractors

[email redacted]

Custom Landscape Materials

[email redacted]

Premier Remediation Services LLC

[email redacted]

By: OAH Staff