ALJDEC decisions subject to certification as final
2016A-3330-ROC · Registrar of Contractors · 2017-02-16
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
Zytech Building Systems LP,
COMPLAINANT,
v.
S C Home Design, LLC,
DBA: Luxe Construction ,
License No: 225945
RESPONDENT.
No. 2016A-3330-THE REGISTRAR
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: January 27, 2017
APPEARANCES: Jerel Erickson appeared on behalf of Complainant. No one appeared on behalf of Respondent.
ADMINISTRATIVE LAW JUDGE: Velva Moses-Thompson
_____________________________________________________________________
FINDINGS OF FACT
On October 6, 2016, the Registrar of Contractors, (hereinafter “Registrar”) issued a Notice of Hearing setting the above-captioned matter for hearing at 1:00 p.m. on November 17, 2016, at the Office of Administrative Hearings in Phoenix, Arizona.
At the hearing on November 17, 2016, the parties requested that the matter be continued to allow the parties time to resolve the matter. The matter was set for a status update for December 9, 2016.
On December 12, 2016, Complainant notified the Tribunal that the matter had not been resolved.
On December 13, 2016, the Office of Administrative Hearings issued a notice to the parties at their addresses of record, notifying them that a hearing would be held on January 27, 2017 at 1:00 p.m.
Although the beginning of the duly noticed hearing was delayed 20 minutes to allow Respondent additional travel time, no one appeared on behalf of Respondent at the hearing on January 27, 2017. Respondent did not contact the Office of Administrative Hearings to request a continuance or that the time for the hearing be further delayed, or present any evidence at the hearing on its behalf.
The matter was convened in Respondent’s absence at about 1:20 p.m.
Respondent holds license number 225945 issued by the Registrar.
Steve Joseph Kurth is S C Home Design, LLC’s manager and Director of Construction. Jerel Erickson is an employee of Zytech Building Systems LP.
In May of 2014, Complainant Zytech Building Systems LP entered a contract with Respondent S C Home Design, LLC under which Complainant was to provide materials for the “Highline Estates – Luxe Construction” project.
Complainant submitted to S C Home Design, LLC three purchase orders that were approved by Steve Joseph Kurth.
Complainant provided materials consisting of roof tresses and lumber for the Highline Estates-Luxe Construction project.
Respondent failed to pay Respondent for the materials.
On August 30, 2016, Complainant filed a complaint against Respondent with the Registrar. Complainant alleged that it was owed $8,952.37. Through a letter dated September 2, 2016, the Registrar informed Respondent that a complaint had been filed against its license.
Respondent filed an answer with the Registrar acknowledging that it owed Complainant a balance of $8,952.37.
On September 12, 2016, the Registrar issued a Citation alleging that Respondent may have violated Ariz. Rev. Stat. section 32-1154(A)(10).
CONCLUSIONS OF 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, S C Home Design, LLC license number 225945 is revoked unless the Registrar receives and accepts written verification that S C Home Design, LLC has paid to Zytech Building Systems LP $8,952.37 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, February 16, 2017.
/s/ Velva Moses-Thompson
Administrative Law Judge
Transmitted electronically to:
Jeffrey Fleetham, Director
Registrar of Contractors