ALJDEC - Licensing
2024A-11811-NPC-ROC · Registrar of Contractors · 2025-05-02
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
Pump N' Smash,
COMPLAINANT
v.
Metro Concrete Arizona LLC
License No. ROC 347745,
RESPONDENT
No. 2024A-11811-NPC-ROC
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: January 10, 2025
APPEARANCES: Luis Fernandez, Owner and Qualifying Party, appeared on behalf of Complainant Pump N’ Smash. James Riggs, Owner and Qualifying Party, appeared on behalf of Respondent Metro Concrete Arizona LLC.
ADMINISTRATIVE LAW JUDGE: Tammy L. Eigenheer
EXHIBITS ADMITTED INTO EVIDENCE: Administrative Notice was taken of the Hearing Packet submitted by the Registrar of Contractors.
_____________________________________________________________________
FINDINGS OF FACT
Metro Concrete Arizona LLC (Respondent) is the holder of License No. 347745 issued by the Registrar of Contractors (Registrar).
Pump N’ Smash (Complainant) contracted with Ready Mix Company to perform work. At the time Complainant was on the jobsite and ready to do the work, Respondent rejected the concrete delivery due to the quality. Complainant was prepared to leave the jobsite and would have charged Ready Mix Company the trip charges associated with being at the job.
Respondent’s representative at the jobsite asked Complainant to stay until a new batch of concrete could be delivered. Complainant agreed with the understanding that it was entering into a new contract with Respondent to perform the work.
Once the concrete arrived, Complainant performed all work required of it.
Complainant sent Respondent an invoice for the work performed.
Respondent questioned the amount of the invoice. Complainant agreed to take an hour off the bill and dropped the fuel charge as well and sent an adjusted invoice with a total amount due of $1795.75.
Respondent did not pay the adjusted invoice.
On or about October 22, 2024, Complainant filed a Complaint against Respondent with the Registrar alleging that Respondent had failed to pay Complainant the sum of $1850.03, including late fees totaling $54.28, for work performed.
The parties were unable to resolve their differences, and Complainant requested an administrative hearing. The Registrar then issued a Citation charging an alleged violation of A.R.S. § 32-1154(A)(10).
Luis Fernandez testified that the principle total due to Complainant was $1795.75. Mr. Fernandez estimated that, had Complainant left the jobsite when the original batch of concrete was rejected, Ready Mix Company would have been charged around $350.00 for the time and fuel associated with the job.
Mr. Riggs testified that Respondent never hired Complainant to perform the work, but that Complainant had a contract with a different company and Respondent was not responsible for paying the invoice. Mr. Riggs did not deny that Complainant was asked to stay on the job by a representative of Respondent or that Complainant performed the work.
Respondent did not assert that it lacked the capacity to pay the amount Complainant asserted was due.
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 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.
While Complainant originally had a contract with Ready Mix Company, when Respondent asked Complainant to wait at the jobsite for a new delivery of concrete, the parties effectively entered into a new contract. However, the terms of that contract were not established in advance.
At hearing, Respondent did not argue that the charges Complainant asserted it was owed were excessive or otherwise unreasonable. Respondent only argued that it did not enter into a contract with Complainant.
Based on the evidence presented, Complainant established that Respondent owed a total of $1795.75 for work performed.
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 A.R.S. § 32-1154(A)(10) by failing to pay Complainant $1795.75 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 No. 347745 issued by the Registrar until it has provided to the Registrar, and the Registrar has accepted, documents that establish that it has paid Complainant $1795.75 in certified funds.
It is further recommended that when and if the Registrar receives and accepts Respondent’s evidence that it has paid Complainant $1795.75 in certified funds, the Registrar may close the Complaint in Case No. 2024-11811.
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, May 2, 2025.
/s/ Tammy L. Eigenheer
Administrative Law Judge
Transmitted by either mail, e-mail, or facsimile to:
Tom Cole, Director
Registrar of Contractors
Pump N' Smash
[email redacted]
Metro Concrete Arizona LLC
[email redacted]
By: OAH Staff