ALJDEC - Licensing

2024A-06110-NPC-ROC · Registrar of Contractors · 2024-11-05

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Trafficade Service, LLC,

COMPLAINANT,

Ward Plumbing & Drain Service, LLC

License No. ROC 321592,

RESPONDENT.

No. 2024A-06110-NPC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: October 24, 2024

APPEARANCES: Erika Johnsen, Esq. represented Complainant Trafficade Services, LLC. Andres Montelongo appeared as a witness for Complainant Trafficade Services, LLC. Respondent Ward Plumbing & Drain Service, LLC failed to appear.

ADMINISTRATIVE LAW JUDGE: Sondra J. Vanella

EXHIBITS ADMITTED INTO EVIDENCE: Complainant Trafficade Services, LLC’s Exhibits A-I

FINDINGS OF FACT

Ward Plumbing & Drain Service, LLC (“Respondent”) is the holder of License Number 321592 issued by the Arizona Registrar of Contractors (“Registrar”).

On or about May 28, 2024, Trafficade Services, LLC (“Complainant”) filed a Complaint against Respondent with the Registrar alleging that Respondent had failed to pay Complainant the sum of $49,878.66 for the provision of traffic control services and equipment at a construction site located at 7th Street and Bell Road, in Phoenix, Arizona.

The parties were unable to resolve their differences. The Registrar issued a Citation against Respondent for its alleged violation of A.R.S. § 32-1154(A)(10).

The matter was set for administrative hearing before the Office of Administrative Hearings on October 24, 2024, at 1:00 p.m. On the date and at the time set for hearing, and after proper notice, Respondent failed to appear. After a grace period, the matter proceeded to hearing.

Andres Montelongo, Complainant’s Account Manager, testified that on June 1, 2023, Respondent, through Zach Ward, submitted a credit application to Complainant and agreed to its terms and conditions by signing the document, which included the following provision:

Our terms are net 30 days regardless of your company policy or receipt of your payment on the job. The undersigned will pay all collection costs, including attorney’s fees incurred by your company in respect to the undersigned’s account. Accounts 60 days and older are subject to service charges of 1.5% per month (18% per annum).

Complainant provided services and equipment to Respondent from July 2023, through September 2023, and submitted five invoices to Respondent. The first invoice dated 7/31/2023, for the period July 6, 2023, through July 28, 2023, was in the amount of $24,851.81. A second invoice for the same time period also dated July 31, 2023, was issued to Respondent in the amount of $12,381.78. A third invoice dated August 31, 2023, was issued to Respondent for the time period August 1, 2023, through August 4, 2023, in the amount of $9,967.44. A fourth invoice dated August 31, 2023, was issued to Respondent for the date of service August 3, 2023, in the amount of $875.00. A fifth invoice dated September 15, 2023, for the time period September 1, 2023, through September 5, 2023, was issued to Respondent in the amount of $1,802.63. The total of the five invoices equates to $49,878.66.

Mr. Montelongo testified that Respondent completed the project, however, did not pay Complainant any monies. Consequently, Complainant’s attorney sent a Demand Letter to Respondent on April 26, 2024, demanding payment in the amount of $49,878.66. Respondent did not respond to the Demand Letter.

Respondent’s Written Answer to the Citation, dated August 23, 2024, acknowledges that it owes Complainant the funds:

. . . I am aware of the payment to Trafficade that is due, and am working to secure funds to rectify this issue. I severely under bid a job that they were used on and am doing my best to resolve the payment issue I have created. I had the unfortunately [sic] job of working through the vendors that were not paid in a timely manner and this is the last one. We hope to secure funding for all or a portion of this within the next few weeks.

Mr. Montelongo testified that Complainant did not hear from Respondent after the Answer was filed. Mr. Montelongo further testified that Respondent never complained about the services or equipment provided, and did not dispute any of the invoices.

Complainant requested a judgment in the amount of $59,289.71, representing the principal amount due plus interest through October 24, 2024.

Respondent failed to appear and therefore, did not present any controverting evidence.

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 this matter 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.”

A.R.S. § 32-1154(A)(10) includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license:

Failure 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 $49,878.66 for the services and equipment provided by Complainant. Respondent failed to appear, and therefore failed to establish that it lacked the capacity to pay Complainant and that it has not received sufficient monies as payment for the project for which the services or materials were rendered or purchased.

Therefore, Complainant established that Respondent violated A.R.S. § 32-1154(A)(10) by failing to pay Complainant $49,878.66 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 Number 321592 issued by the Registrar until it has provided to the Registrar, and the Registrar has accepted, documents that establish that it has paid Complainant $49,878.66 in certified funds.

It is further recommended that when and if the Registrar receives and accepts Respondent’s evidence that it has paid Complainant $49,878.66 in certified funds, the Registrar may close the Complaint in Case Number 2024-06110.

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, November 5, 2024.

/s/ Sondra J. Vanella

Administrative Law Judge

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

Tom Cole, Director

Registrar of Contractors

c/o Legal Department

[email redacted]

Erika L. Johnsen

James N. Hanson

LANG THAL KING & HANSON, PC

[email redacted]

Trafficade Service, LLC

[email redacted]

Ward Plumbing & Drain Service, LLC

[email redacted]

By: OAH Staff