ALJDEC decisions subject to certification as final

2010A-308475896-ROC-RHG · Registrar of Contractors · 2016-06-21

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: June 2, 2016 APPEARANCES: Edward J. Marko, Esq. for Complainant; Brian G. Pursell, Esq. for Respondent ADMINISTRATIVE LAW JUDGE: Thomas Shedden _____________________________________________________________________ FINDINGS OF FACT 1. On March 17, 2016, the Registrar of Contractors (“ROC”) issued a Notice of Compliance Hearing setting the above-captioned matter for hearing on April 28, 2016, at the Office of Administrative Hearings in Phoenix, Arizona. 2. The matter was continued and the hearing was conducted on June 2, 2016. 3. Respondent Edward Patrick Halliburton d.b.a. RACE Grading holds license number CR-5.194468-D issued by ROC.[1] 4. Mr. Halliburton and Complainant Caterpillar Financial Services (“CAT”) both appeared and were represented by counsel. Neither party presented any witnesses, but exhibits from each party were accepted into evidence. 5. The initial hearing was conducted on January 6, 2011. Through an Administrative Law Judge Decision dated January 25, 2011, Administrative Law Judge (“ALJ”) Eric Bryant determined that Respondent had failed to pay CAT $75,925.26 in violation of Ariz. Rev. Stat section 32-1154(A)(11).[2] 6. ALJ Bryant recommended that Respondent’s license number CR- 5.194468-D be suspended until ROC received and accepted proof that Respondent had paid to CAT the amount of $75,925.26. ROC accepted ALJ Bryant’s recommended decision. 7. In March 2011, Respondent and CAT entered into a Stipulated Payment Agreement and Conditional Release (the “Agreement”). Exhibit A. 8. The Agreement shows that based on ALJ Bryant’s Decision, Respondent’s license number CR-5.194468-D was to be suspended effective March 13, 2013. 9. Under the Agreement, Respondent agreed to make monthly payments to CAT and the proposed suspension of Respondent’s license was stayed. 10. The Agreement provides (among other things) that if Respondent failed to make the required payments to CAT, CAT would request that ROC reinstate the order of suspension and that the full amount Respondent owes to CAT would then be due.[3] 11. Respondent acknowledges that he has not made all the required payments to CAT and that he is not in compliance with the terms of the Agreement. Respondent asserts however that he does not have sufficient resources to make the required payments (at least in part because he is now obligated to make monthly payments to the IRS) and that any failure to adhere to the Agreement is a matter for the civil courts to address, not ROC.

CONCLUSIONS OF LAW 1. Unless otherwise provided by law, a party asserting a claim, right, or entitlement bears the burden of proof; a party asserting an affirmative defense has the burden of establishing the affirmative defense. The standard of proof on all issues in this matter is that of a preponderance of the evidence. Ariz. Admin. Code § R2-19-119. 2. A preponderance of the evidence is: The greater weight of the evidence, not necessarily established by the greater number of witnesses testifying to a fact but by evidence that has the most convincing force; superior evidentiary weight that, though not sufficient to free the mind wholly from all reasonable doubt, is still sufficient to incline a fair and impartial mind to one side of the issue rather than the other.

Black’s Law Dictionary 1373 (10th ed. 2014). 3. “At a hearing on an agency action to suspend, revoke, terminate or modify on its own initiative material conditions of a license or permit, the agency has the burden of persuasion.” Ariz. Rev. Stat. § 41-1092.07(G)(2). 4. Statutes should be interpreted to provide a fair and sensible result. Gutierrez v. Industrial Commission of Arizona, 226 Ariz. 395, 249 P.3d 1095 (2011)(citation omitted); State v. McFall, 103 Ariz. 234, 238, 439 P.2d 805, 809 (1968) ("Courts will not place an absurd and unreasonable construction on statutes."). 5. The purpose of the Registrar’s licensing statutes is to protect the public from unscrupulous, unqualified, and financially irresponsible contractors. See Aesthetic Property Maintenance v. Capital Indem. Corp., 183 Ariz. 74, 900 P. 2d 1210 (1995). 6. Respondent’s license number CR-5.194468-D would have been suspended but for the fact that Respondent entered the Agreement through which he was required to make payments to CAT. The preponderance of the evidence shows that Respondent is not in compliance with that Agreement. 7. Because Respondent is not in compliance with the Agreement, his license should be suspended until such time as he pays CAT the full amount of his debt. RECOMMENDED ORDER IT IS ORDERED that on the effective date of the final Order in this matter Edward Patrick Halliburton d.b.a. RACE Grading’s license number CR-5.194468- D is suspended until ROC receives and accepts written verification that Edward Patrick Halliburton d.b.a. RACE Grading has paid to Caterpillar Financial Services the full amount of his debt. If Edward Patrick Halliburton d.b.a. RACE Grading makes that payment before the effective date of the final Order in this matter, then no suspension shall take place. 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 is forty days after the date of that certification.

Done this day, June 21, 2016.

/s/ Thomas Shedden Thomas Shedden Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director Registrar of Contractors ----------------------- [1] ROC’s website shows Respondent’s license number as 194468. Consistent with existing policy, in this Decision the number set out in the Notice of Hearing’s caption is used. [2] That provision has subsequently been renumbered as subsection (A)(10). [3] CAT’s Prehearing Memorandum shows that as of May 16, 2016, Respondent owed CAT $79,376.64.

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Office of Administrative Hearings 1400 West Washington, Suite 101 Phoenix, Arizona 85007 (602) 542-9826