ALJDEC decisions subject to certification as final

2016A-4065-ROC · Registrar of Contractors · 2017-02-01

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Overson Roofing LLC,

COMPLAINANT,

v.

Briant Construction & Consulting LLC ,

License No: 204003

RESPONDENT.

No. 2016A-4065-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: January 12, 2017

APPEARANCES: Brett Overson appeared on behalf of Complainant. Brian Marshall appeared on behalf of Respondent.

ADMINISTRATIVE LAW JUDGE: Velva Moses-Thompson

_____________________________________________________________________

FINDINGS OF FACT

On November 22, 2016, the Registrar of Contractors (hereinafter “ROC”) issued a Notice of Hearing setting the above-captioned matter for hearing on January 12, 2017, at the Office of Administrative Hearings in Phoenix, Arizona.

Respondent Briant Construction & Consulting LLC (hereinafter “Briant”), holds license number 204003 issued by ROC. Brian Marshall (hereinafter “Mr. Marshall”) is a member of the LLC and the qualifying party.

The Complainant is Overson Roofing LLC (hereinafter “Overson”); Brett Overson is a member and co-owner of Overson.

In March 2016, Briant and Overson entered into a contract wherein Overson was to complete a home remodeling project for three separate residences.

Overson completed its work and Briant owes it $43,699.18.

Briant acknowledges that it has not paid Overson $43,699.18. Brian did not dispute that he owes Overson $41,699.18. Briant contends that it only owes Overson the difference between the amount of $43,699.18 and $2,000, because Overson agreed to credit Briant $2,000 for work Briant performed on a bid related to a separate contract.

Briant had admitted emails in support of its contention that Overson agreed to credit Briant $2,000. However, Overson did not state in any of the emails that it would credit Briant $2,000.

Brett Overson (hereinafter “Mr. Overson”) testified that he was unaware of

any promise to credit Briant $2,000 and that he would not have authorized such a credit.

Mr. Marshall also testified that he will pay Overson for the work it performed. However, Mr. Marshall testified that his business has suffered financially. Mr. Marshall also testified that he is working on selling his house or getting a line of credit to pay Overson. Mr. Marshall testified that he was never paid for the third residence where Overson performed work because the homeowner was dissatisfied with the work. Mr. Marshall testified that he needs to pay Overson for the work done on the third residence but he contended that the work needs to be corrected. No written documentation was presented regarding Briant’s financial status.

On October 14, 2016, Overson filed with ROC a Complaint against Briant.

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

Administrative notice is taken of Respondent’s prior License record as

reflected on the Registrar’s public website on February 1, 2017. Such prior License record reflects that Respondent’s License No. 204003 was suspended for lack of bond on November 2, 2016. Such prior License record reflects that Respondent’s License No. 204003 was voluntarily cancelled on January 3, 2017.

CONCLUSIONS OF LAW

The revoked status of Respondent’s license does not deprive Complainant

of his right to prosecute his Complaint against Respondent or prevent the Registrar from determining the merits of Complainant’s complaint. This matter lies within the Registrar’s jurisdiction.

2. 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.

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.

9. The preponderance of the evidence established Respondent owes

Complainant $43,699.18.

10. Respondent failed to establish that it lacked the ability to pay

Complainant for the work performed.

11. Therefore, Complainant established by a preponderance of the evidence

that Respondent violated A.R.S. § 32-1154(A)(10) by failing to pay Complainant $43,699.18 for services rendered in connection with Respondent’s contracting business.

12. Based upon Respondent’s violation of the provisions of A.R.S. § 32-

1154(A)(11), grounds exist to impose discipline against Respondent’s license.

RECOMMENDed order

Based on the foregoing, it is recommended that the Registrar revoke Respondent’s License No: 204003 issued by the Registrar unless Respondent has provided to the Registrar, and the Registrar has accepted, documents that establish that Respondent paid Complainant $43,699.18 in certified funds.

It is further recommended that if the Registrar receives and accepts Respondent’s evidence that it has paid Complainant $43,699.18 in certified funds before the effective date of the Registrar’s Order, the Registrar may close the Complaint in this matter.

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 1, 2017.

/s/ Velva Moses-Thompson

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors