ALJDEC - Licensing

2024A-04335-NPC-ROC · Registrar of Contractors · 2024-08-29

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Foundation Building Materials, LLC,

DBA: FBM Sales,

COMPLAINANT

v.

Desert Sand Construction Inc

DBA: Desert Sand Electric,

License No. ROC 078318,

RESPONDENT

No. 2024A-04335-NPC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: August 23, 2024

APPEARANCES: James Reed appeared as counsel on behalf of Foundation Building Materials, LLC. Respondent failed to appear.

ADMINISTRATIVE LAW JUDGE: Amy M. Haley

EXHIBITS ADMITTED INTO EVIDENCE: Complainant’s exhibits 1 through 4 were admitted. Administrative Notice was taken of the Notice of Hearing packet and all of its documents contained therein.

_____________________________________________________________________

FINDINGS OF FACT

Desert Sand Construction Inc. (Respondent) is the holder of License No. 078318 issued by the Registrar of Contractors (Registrar).

On or about April 15, 2024, Foundation Building Materials LLC (Complainant) filed a Complaint against Respondent with the Registrar alleging that Respondent had failed to pay Complainant the sum of $11,086.00 for building materials and supplies Respondent had purchased and received.

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

Harlene Mentor, assistant branch manager, testified on behalf of Complainant. Ms. Mentor testified that the total due to Complainant was $11,086.00. She further testified that the total amount due consisted of principle only and was for materials that were purchased and received by Respondent for the Resource Healthcare Clock Tower project.

On August 20, 2024, Respondent filed a Notice of Withdrawal of Answer to Citation and Complaint wherein Respondent stated that it had filed for Chapter 7 Bankruptcy relief and that there was no possibility that Respondent would continue to do business; therefore, it no longer contested the proceedings brought against it.

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.

A preponderance of the evidence is “such proof as convinces the trier of fact that the contention is more probably true than not.”

Ariz. Rev. Stat. § 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 $11,086.00 for materials purchased.

A statement in a pleading that Respondent had filed bankruptcy, with no proof of the bankruptcy documentation attached, in and of itself is not sufficient evidence to support any contention that Respondent lacked the capacity to pay the amount Complainant asserted was due. Furthermore, Respondent did not contest the citation as its answer was withdrawn.

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 Ariz. Rev. Stat. § 32-1154(A)(10) by failing to pay Complainant $11,086.00 for materials rendered in connection with Respondent’s contracting business.

Based upon Respondent’s violation of the provisions of Ariz. Rev. Stat. § 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. 078318 issued by the Registrar until it has provided to the Registrar, and the Registrar has accepted, documents that establish that it has paid Complainant $11,086.00 in certified funds.

It is further recommended that when and if the Registrar receives and accepts Respondent’s evidence that it has paid Complainant $11,086.00 in certified funds, the Registrar may close the Complaint in Case No. 2024-04335.

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, August 29, 2024.

/s/ Amy M. Haley

Administrative Law Judge

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

Tom Cole, Director

Registrar of Contractors

By: OAH Staff