ALJDEC decisions subject to certification as final

2016A-264-ROC · Registrar of Contractors · 2016-06-02

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: May 18, 2016 APPEARANCES: Micah Jones for Complainant; Nicholas Main for Respondent ADMINISTRATIVE LAW JUDGE: Thomas Shedden _____________________________________________________________________ FINDINGS OF FACT 1. On March 22, 2016, the Registrar of Contractors (“ROC”) issued a Notice of Hearing setting the above-captioned matter for hearing on April 29, 2016. 2. The matter was continued and the hearing was conducted on May 18, 2016. 3. The Notice of Hearing shows that the hearing was set to consider the charges made in the Citation and Complaint.[1] 4. Through the Citation, ROC alleges that Respondent Main Construction and Landscape LLC (“Main”) may have violated Ariz. Rev. Stat. section 32-1154(A)(10). The Citation shows that if the Administrative Law Judge finds that the alleged charge is valid, ROC may suspend or revoke Main’s licenses. 5. Main holds license numbers 209358 and 215939 issued by ROC. Nicholas Main is Main’s qualifying party. 6. In December 2015, Main requested that Complainant Highland Glass Products, Inc. (“Highland”) provide two quotes related to work on a shower enclosure. 7. Highland provided quotes of $1781.25 (Option 1) and $3900.00 (Option 2). Both options included an additional $200.00 for a transom. 8. Although Main authorized Highland to go forward with work on the shower enclosure, the parties dispute the details/scope of the authorization. 9. Highland takes the position that Main authorized it to provide Option 1 at a cost of $3900.00. Main’s position is that it authorized only about $2000.00 worth of work.[2] 10. Highland acknowledged that there was no signed contract that details which option Main authorized it to proceed on.[3] Highland’s office manager Janet Bates testified that she had requested Mr. Main to sign a contract, but he had said he was too busy to do so. 11. Mr. Main acknowledged that Main owes Highland for the work that it did do.[4] Based on documents filed with ROC and Mr. Main’s testimony this amounts to about $2000.00. 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. “Statutes shall be liberally construed to effect their objects and to promote justice.” Ariz. Rev. Stat. § 1-211(B). 6. The purpose of ROC’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 the parties have a good-faith dispute about the cost of the work Main authorized Highland to undertake. Main acknowledges however that it owes Highland $2000.00. Consequently, the preponderance of the evidence shows that Main violated Ariz. Rev. Stat section 32- 1154(A)(10) as alleged. 9. Because Main has violated Ariz. Rev. Stat section 32- 1154(A)(10), its license is subject to discipline. It is recommended that Main’s license be suspended until such time as it pays to Highland the $2000.00 that it agrees it owes. RECOMMENDATION IT IS RECOMMENDED that on the effective date of the final Order in this matter, Main Construction and Landscape LLC’s license numbers 209358 and 215939 are suspended until ROC receives and accepts written verification that Main Construction and Landscape LLC has paid to Highland Glass Products, Inc. $2000.00 in certified funds. If on or before the effective date of that final Order, ROC receives and accepts written verification that Main Construction and Landscape LLC has paid to Highland Glass Products, Inc. $2000.00 in certified funds, then no suspension shall take place and Case No. 2016-264 will be dismissed.

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 2, 2016.

/s/ Thomas Shedden Thomas Shedden Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director Registrar of Contractors ----------------------- [1] The Notice of Hearing does not provide the date the Citation was issued or when the Complaint was issued or filed. There appears to be no dispute that the Citation was issued on March 8, 2016 or that the Complaint was filed on January 22, 2016. [2] Mr. Main testified to the effect that he knew that the Option 2 price would need to be modified because the scope or work had changed. [3] ROC’s administrative record shows that through a letter dated January 28, 2016, ROC was dismissing the complaint and declining to issue a Citation because it had determined that there were no plans, specifications or contract documents to support the complaint’s allegations. [4] Mr. Main testified to the effect that Main had not paid the $2000.00 to Highland because he was unaware that he could while the dispute was ongoing and because the relationship between the parties had broken down to the point that there was little or no communication.

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