ALJDEC decisions subject to certification as final

2015A-3900-ROC · Registrar of Contractors · 2016-01-26

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: January 26, 2016 APPEARANCES: Complainant appeared on his own behalf; no one appeared for Respondent ADMINISTRATIVE LAW JUDGE: Thomas Shedden _____________________________________________________________________ FINDINGS OF FACT 1. On December 18, 2015, the Registrar of Contractors (“ROC”) issued a Notice of Hearing setting the above-captioned matter for hearing at 8:00 a.m. January 26, 2016, at the Office of Administrative Hearings in Phoenix, Arizona. 2. No representative for Respondent First Generation Builders LLC appeared at the scheduled time and the matter was convened in its absence at about 8:20 a.m. 3. Respondent holds license number KB-2.265196-D issued by ROC.[1] 4. In May 2015, Complainant Charles Mark Ciangura, II, d.b.a. Mohave Septic and Excavating entered a contract with Respondent under which Complainant was to install a septic system and grade a pad for a home located in Yucca Arizona. The total contract price was $6330.00. 5. Complainant completed the required work. 6. Respondent made an initial payment of $3000.00 and after the job was complete made another payment of $1500.00. 7. Mr. Ciangura testified to the effect that Respondent then made promises to pay the balance but never did. 8. While the matter was pending, Respondent’s owner Mark Wimpee, inherited property that he sold. Mr. Wimpee had represented to Mr. Ciangura that when he sold the property he would pay Complainant, but Mr. Wimpee did not do so. 9. Respondent sent Complainant a check for $150.00, but Complainant did not cash that check because he did not want to agree to any new contract terms. 10. Complainant’s wife, Deborah Elder testified that the property owner had informed her and Mr. Ciangura that he had paid Respondent sufficient money to cover the cost of the work Complainant completed. 11. On September 14, 2015, Complainant filed with ROC a Complaint against Respondent. 12. On September 28, 2015, ROC issued a Citation alleging that Respondent may have violated Ariz. Rev. Stat. section 32- 1154(A)(10). CONCLUSIONS OF LAW 1. 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. 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."). 4. “Statutes shall be liberally construed to effect their objects and to promote justice.” Ariz. Rev. Stat. § 1-211(B). 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. Ariz. Rev. Stat section 32-1154(A) provides that: The holder of a license or any person listed on a license pursuant to this chapter shall not commit any of the following acts or omissions: …. 10. Failure by a licensee or agent or official of a licensee to pay monies in excess of seven hundred fifty dollars when due for materials or services rendered in connection with the licensee's operations as a contractor when the licensee has the capacity to pay or, if the licensee lacks the capacity to pay, when the licensee has received sufficient monies as payment for the particular construction work project or operation for which the services or materials were rendered or purchased.

7. The preponderance of the evidence shows that Respondent violated Ariz. Rev. Stat section 32-1154(A)(10) as alleged. ORDER IT IS ORDERED that on the effective date of the final Order in this matter First Generation Builders LLC’s license number KB-2.265196-D is revoked unless ROC receives and accepts written verification that First Generation Builders LLC has paid to Charles Mark Ciangura, II d.b.a. Mohave Septic and Excavating $1830.00 in certified funds. 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, January 26, 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 265196. Consistent with existing policy, in this Decision the number set out in the Notice of Hearing’s caption is used.

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