ALJDEC decisions subject to certification as final

2016A-2668-ROC · Registrar of Contractors · 2016-11-03

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Arizona Mini Mix Concrete,

COMPLAINANT

-v-

Rigid Masonry Inc,

License No. 269438

RESPONDENT

No. 2016A-2668-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: October 20, 2016

APPEARANCES: Tara Miller, Esq. for Complainant; Travis Zinner for Respondent

ADMINISTRATIVE LAW JUDGE: Thomas Shedden

_____________________________________________________________________

FINDINGS OF FACT

On September 1, 2016, the Registrar of Contractors (“ROC”) issued a Notice of Hearing setting the above-captioned matter for hearing on October 20, 2016, at the Office of Administrative Hearings in Phoenix, Arizona.

The Notice of Hearing shows that the hearing was being conducted on the charges made in the Citation and Complaint.

Respondent Rigid Masonry, Inc. holds license number 269438 issued by ROC. Travis Zinner is Respondent’s qualifying party.

On July 25, 2016, Complainant Arizona Mini Mix Concrete filed with ROC a complaint against Respondent in which it alleged that that Respondent had failed to pay Complainant $41,756.62 for materials provided to Respondent.

On August 2, 2016, ROC issued a Citation alleging that Respondent may have violated Ariz. Rev. Stat. section 32-1154(A)(10).

At the hearing Complainant had admitted into evidence documentation in support of its allegation that Respondent owes Complainant $41,756.62. Mr. Zinner acknowledged that Respondent does owe Complainant $41,756.62 for materials.

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 Rigid Masonry, Inc.’s license number 269438 is suspended until ROC receives and accepts written verification that Rigid Masonry, Inc. has paid to Arizona Mini Mix Concrete $41,756.62 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, November 3, 2016.

/s/ Thomas Shedden

Thomas Shedden

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors