ALJDEC - Licensing
2024A-08593-NPC-ROC · Registrar of Contractors · 2024-12-22
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
V&T Barricades LLC,
COMPLAINANT,
v.
10-4 Utility Construction LLC,
License No. ROC 350821,
RESPONDENT.
No. 2024A-08593-NPC-ROC
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: November 5, 0224 (Virtual).
APPEARANCES: Ray A. Montoya and Kristy Hansen appeared on behalf of 10-4 Utility Construction LLC. No person appeared on behalf of Complainant.
ADMINISTRATIVE LAW JUDGE: Kay A. Abramsohn
EXHIBITS ADMITTED INTO EVIDENCE: Registrar Notice of Hearing Packet (Packet).
FINDINGS OF FACT
Public records indicate that 10-4 Utility Construction LLC (Respondent) holds License No. 350821 which was issued by the Registrar of Contractors (Registrar) on March 8, 2024. Public records name qualifying party for Respondent as Karen M. Martinez Bahena; public records further indicate that this license was suspended July 11, 2024 due to lack of a qualifying party.
On or about July 23, 2024, Martin Valencia filed a Non-Payment Complaint Form (Complaint) against Respondent with the Registrar alleging that Respondent had failed to pay Complainant a total of $28,540.00 on multiple invoices spanning from November of 2023 to March 13, 2024.
On August 30, 2024, the Registrar issued a Citation to Respondent for the alleged violation of Arizona Revised Statutes (A.R.S.) § 32-1154(A)(10).
Respondent filed its Answer on September 13, 2024, indicating as follows:
Back in March we had a meeting with Pauley Construction regarding payments to 10-4 that were on hold including money owed to V & T barricades. After that meeting we were told that Pauley was going to pay them directly since [P]auley was holding payments to us.
Then when we gotten a call from Martin with V & T letting us know that they have not received any payment from Pauley we then set up another meeting with them in July and at that time we were told that they were not going to pay them directly and we would have to.
Unfortunately 10-4 has not been operational since our license (qualifying party) was no good and we have been struggling on money.
[W]e were however in contact with them to work out a payment plan to repay all money that we know we owed them and also in contact with the owner of V & T which is Martin and then with the collection agency (see all email attached correspondence with collection agency they hired)
we have already back on 8/16 gave them 3,000 good faith payment and we are working on getting them more we are also in contact with them on a regular basis.
So we feel that we should not be suspended or revoked since we are trying to work with them and as I said before 10-4 is not operating at this time until we get a current ROC License.
"we are trying to collect money from another client that we did work for when our license was ok"
once we can get this we can pay them all money owed.
In the meantime we are trying to pay them what we can when we can.
With the Answer, Respondent provided a series of emails with the Collections agency demonstrating both that they have made two payments and that the amount owed to Complainant had been included in Respondent’s “lawsuit” against the “former employer.”
The matter was not resolved informally between the parties.
On August 30, 2024, the Registrar issued its Notice of Hearing setting the virtual hearing for November 5, 2024. The Notice was sent to the parties’ addresses of record with the Registrar.
On September 23, 2024, the Tribunal issued its ORDER providing the virtual link and phone number for the parties to appear at the virtual hearing. The ORDER was issued electronically to the parties’ electronic addresses as reflected in the Registrar’s Notice of Hearing.
At the time of the hearing, and for more than fifteen minutes thereafter, Complainant did not appear. As a result of Complainant’s failure to appear, Complainant presented no evidence in regard to the Complaint.
At the hearing, Mr. Montoya testified that he has been contacted by a Collections agency and has made two payments [$3,000.00 and $2,500.00] thereby reducing the total amount due to $23,040.00. However, Mr. Montoya also testified that Respondent was not paid on the projects for which they contracted with Complainant, reiterating the information he provided in the Answer.
According to the Registrar’s public record, Respondent has only the instant case as an open cases.
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 Arizona Administrative Code (A.A.C.) R2-19-119.
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.
Mr. Montoya provided sworn testimony that Respondent had not been paid by Pauley Construction for the projects for which Respondent had contracted with Complainant. Mr. Montoya further testified that they have made two payments, one of $3,000.00 and one of $2,500.00.
It cannot be determined that Complainant has “dropped” the ROC Complaint simply because Complainant turned the matter over to Collections.
Complainant failed to appear to proceed with its Complaint or to present any evidence with regard to the matter. Therefore, Complainant failed to establish that it was owed any money by Respondent in connection with Respondent’s contracting business. Thus, Complainant failed to establish that any grounds exist to impose discipline on Respondent’s license. Based on Complainant’s failure to appear and proceed with the matter, Complainant’s Complaint should be dismissed.
RECOMMENDed order
IT IS ORDERED Complainant’s Complaint is dismissed.
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 Administrative Law 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, December 22, 2024.
/s/ Kay A. Abramsohn
Administrative Law Judge
Transmitted electronically to:
Tom Cole, Director
Registrar of Contractors
10-4 Utility Construction LLC
1105 S 363rd Ave
Tonopah, AZ 85354
[email redacted]
V&T Barricades LLC
43222 N 44TH AVE
NEW RIVER, AZ 85087
[email redacted]
By: OAH Staff