ALJDEC decisions subject to certification as final

2016A-2114-ROC · Registrar of Contractors · 2016-10-18

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Kowality Plumbing, LLC,

COMPLAINANT,

v.

360 Development, LLC

DBA: 360 Dev Co,

License No. 224324,

RESPONDENT.

No. 2016A-2114-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: October 11, 2016

APPEARANCES: Steve Kowalczyk for Complainant; no one appeared for Respondent

ADMINISTRATIVE LAW JUDGE: Thomas Shedden

_____________________________________________________________________

FINDINGS OF FACT

On July 11, 2016, the Registrar of Contractors (“ROC”) issued a Notice of Hearing setting the above-captioned matter for hearing on September 2, 2016, at the Office of Administrative Hearings in Phoenix, Arizona.

At Respondent 360 Development, LLC, d.b.a. 360 Dev Co’s request, the matter was continued and rescheduled to convene at 8:00 a.m. October 11, 2016.

On October 11, 2016, no representative for Respondent appeared at the scheduled time and the matter was convened in its absence at about 8:20 a.m.

On August 28, 2015, Respondent’s owner signed a proposal under which Complainant Kowality Plumbing, LLC was to provide services at a job referred to as the Goodyear Pharmacy job. The proposal was signed in the presence of Complainant’s owner Steve Kowalczyk and the agreed upon amount was $9500.00.

Mr. Kowalczyk testified that Complainant had completed it work as set out in the proposal, but had been paid only $7000.00.

Complainant had submitted into evidence a lien release showing that it had received this $7000.00.

As of the hearing date, Complainant had not received the additional $2500.00.

Complainant provided testimony showing that Respondent had requested Complainant perform work at the Paradise Village Retirement Center on December 2 and 4, 2015. Complainant submitted to Respondent a bill for $497.95 for this work, but had not been paid as of the date of the hearing.

On June 20, 2016, Complainant filed with ROC a Complaint against Respondent alleging non-payment for the work on the Goodyear Pharmacy and for the work at Paradise Village.

On June 28, 2016, ROC issued a Citation alleging that Respondent may have violated Ariz. Rev. Stat. section 32-1154(A)(10).

CONCLUSIONS OF LAW

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.

“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).

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).

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.").

“Statutes shall be liberally construed to effect their objects and to promote justice.” Ariz. Rev. Stat. § 1-211(B).

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).

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.

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 360 Development, LLC, d.b.a. 360 Dev Co’s license number 224324 is revoked unless ROC receives and accepts written verification that 360 Development, LLC, d.b.a. 360 Dev Co has paid to Kowality Plumbing $2997.95 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, October 18, 2016.

/s/ Thomas Shedden

Thomas Shedden

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors