ALJDEC decisions subject to certification as final

2015A-4520-ROC · Registrar of Contractors · 2016-03-16

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: March 11, 2016 APPEARANCES: Chad Ridenour for Complainant; no one appeared for Respondent ADMINISTRATIVE LAW JUDGE: Thomas Shedden _____________________________________________________________________ FINDINGS OF FACT 1. On February 9, 2016, the Registrar of Contractors (“ROC”) issued a Notice of Hearing setting the above-captioned matter for hearing at 8:00 a.m. March 11, 2016, at the Office of Administrative Hearings in Phoenix, Arizona. 2. No representative for Respondent Canyon State Lifestyles, LLC appeared at the scheduled time and the matter was convened in its absence at about 8:20 a.m. 3. Respondent holds license numbers 241088 and 274589 issued by ROC. 4. Mark McHone is Respondent’s qualifying party and a member of the LLC. Elaine McHone is a member of Canyon State Lifestyles, LLC. 5. In March 2015, Complainant Turn It On Electric, LLC entered an agreement with CSL Builders, LLC under which Complainant was to provide labor and materials at the “Pima Dental” project. Kristopher Michael Chad Ridenour is Complainant’s qualifying party. 6. Elaine McHone was the managing member of CSL Builders LLC and Mark McHone was a member of that LLC. CSL Builders, LLC was terminated on August 3, 2015. 7. Complainant submitted to CSL Builders, LLC eleven change orders that were approved by Pima Dental’s owner. 8. On October 26, 2015, Complainant filed with ROC a complaint against CSL Builders LLC. Through a letter dated October 30, 2015, ROC informed Respondent that a complaint had been filed against its license. 9. Respondent filed with ROC an answer asserting that CSL Builders, LLC was the responsible entity and that that LLC had provided the bank with sufficient funds to pay Complainant. 10. On January 8, 2016, ROC issued a Citation alleging that Respondent may have violated Ariz. Rev. Stat. section 32- 1154(A)(10). 11. At the time Complainant filed its complaint, Complainant had been paid $3871.16, whereas it was owed $47,401.00. As of the date of the hearing, Complainant had been paid $36,871.16, leaving a balance due of $10,529.84. 12. Mr. Ridenour testified as to his belief that Respondent had not actually obtained approval of all the changes orders, which he surmised was the reason that there were insufficient funds in the project bank account to pay Complainant all it was due. 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. “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). 3. 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). 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. “Statutes shall be liberally construed to effect their objects and to promote justice.” Ariz. Rev. Stat. § 1-211(B). 6. 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). 7. 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.

8. 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, Canyon State Lifestyles, LLC’s license numbers 241088 and 274589 are revoked unless ROC receives and accepts written verification that Canyon State Lifestyles, LLC has paid to Turn It On Electric, LLC $10,529.84 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, March 16, 2016.

/s/ Thomas Shedden Thomas Shedden Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director Registrar of Contractors -----------------------

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