ALJDEC decisions subject to certification as final
2016A-4538-NPC-ROC · Registrar of Contractors · 2017-07-20
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
Gamble Electric Incorporated,
COMPLAINANT,
v.
Ventura Pacific Development Inc.,
License No:
259314
RESPONDENT.
No. 2016A-4538-NPC-ROC
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: June 30, 2017
APPEARANCES: Katherine Wenger appeared on behalf of Complainant Gamble Electric Incorporated. No one appeared on behalf of Respondent Ventura Pacific Development Inc.
ADMINISTRATIVE LAW JUDGE: Velva Moses-Thompson
_____________________________________________________________________
FINDINGS OF FACT
1. In October or November of 2015, Gamble Electric Incorporated LLC, (“Gamble”), and Ventura Pacific Development Inc., (“Ventura”), entered into an agreement wherein Ventura agreed to pay Gamble to perform construction work at the Prep & Pastry II project. The amount of the original contract was $56,980. See Exhibits C12 and C14.
2. Douglas Perry is the qualifying party for Ventura.
3. In June or July of 2016, Gamble and Ventura agreed to a change order in connection with the Prep & Pastry II project. The amount of the additional change order was $625. Ventura paid Gamble for work done under the original contract, and three prior change orders, in the amount of $25,315. Ventura did not pay Gamble for the additional change order in the amount of $625. Therefore, contract price was adjusted to $32,290. Mr. Perry signed the change order in the amount of $625 which reflected an adjusted contract price of $32,290. See Exhibits C12 and C14.
4. Gamble and Ventura into an agreement wherein Ventura agreed to pay Gamble to perform construction work at the La Cholla Building B project. The amount of the original contract was $129,140.
5. In June or July of 2016, Gamble and Ventura agreed to a change order in connection with the La Cholla Building B project, in the total amount of $405. Mr. Perry signed the change order in the amount of $405 which reflected an original contract price of $129,140, five prior change orders that totaled $28,135, the additional change order of $405, and a total adjusted contract price of $157,680. See Exhibit C4.
6. Gamble and Ventura entered into an agreement wherein Ventura agreed to pay Gamble to perform construction work at the Old Vail Station Storage Building Phase II project. The amount of the contract was $28,125. See Exhibit C8.
7. Gamble performed and completed the construction work required under the contracts and change orders for the Prep & Pastry II, La Cholla Building B and Old Vail Station Storage projects.
8. However, Ventura failed to pay Gamble the total amount due.
9. On or about November 14, 2016, Gamble filed a complaint against
Ventura with the Registrar for non-payment in connection with the Prep & Pastry II, La Cholla Building B and Old Vail Station Storage projects.
10. On April 6, 2017, the Registrar of Contractors, (“Registrar”), issued a Citation for an alleged violation of Ariz. Rev. Stat. section 32-1154(A)(10).
11. Ventura filed a timely response to the Citation alleging that it had not received proper payment from the owners on the projects. Ventura also alleged that the change orders associated with the jobs were not obtained with proper approval.
12. The Registrar referred the matter to the Office of Administrative Hearings,
an independent agency, to schedule an evidentiary hearing. 13. On May 9, 2017, the Registrar issued a Notice of Hearing setting the
above-captioned matter for hearing at 1:00 p.m. on June 30, 2017, at the Office of Administrative Hearings in Phoenix, Arizona.
14. A hearing was held on June 30, 2017.
15. At hearing, Katherine Wenger, Gamble’s corporate secretary, testified on behalf of Gamble and submitted 15 exhibits.
16. No one appeared on behalf of Ventura. No one filed a request to appear telephonically on behalf of Ventura. Although the hearing did not start until approximately 1:20 p.m., no one appeared on behalf of Ventura through an authorized member, officer, employee, or attorney, or contact the OAH to request that the start of the hearing be further delayed. Consequently, Ventura did not present any evidence to defend its license.
17. Gamble contended that it was owed a total of $101,698.51 for all three projects. Ms. Wenger testified that Ventura owed Gamble a balance of $44,442.44 for the La Cholla Building B project, $25,591.07 for the Old Vail Storage project and $31,665 for the Prep & Pastry II project. See Exhibit C1.
18. I find Ms. Wenger’s testimony to be credible.
19. Administrative notice is taken of Respondent’s prior License record on July 20, 2017. Such prior License record reflects that Respondent’s License No. 259314 was first issued on October 27, 2009, and is suspended. Such prior License record also reflects that there are three open complaints against Respondent, and one complaint that resulted in discipline against Respondent’s license.
CONCLUSIONS OF LAW
The suspended status of Respondent’s license does not deprive
Complainant of its right to prosecute its 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 Ventura violated Ariz. Rev. Stat section 32-1154(A)(10) as alleged.
9. The preponderance of the evidence established Ventura owes
Complainant $101,698.51.
10. Therefore, Gamble established by a preponderance of the evidence
that Ventura violated A.R.S. § 32-1154(A)(10) by failing to pay Gamble $101,698.51 for services rendered in connection with Ventura’s contracting business.
11. Based upon Respondent’s violation of the provisions of A.R.S. § 32-
1154(A)(10), grounds exist to impose discipline against Ventura’s license.
RECOMMENDed order
Based on the foregoing, it is recommended that the Registrar revoke Respondent’s License No: 259314 issued by the Registrar unless Respondent has provided to the Registrar, and the Registrar has accepted, documents that establish that Respondent paid Complainant $101,698.51 in certified funds.
It is further recommended that if the Registrar receives and accepts Respondent’s evidence that it has paid Complainant $101,698.51 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, July 20, 2017
Velva Moses-Thompson
Administrative Law Judge
Transmitted electronically to:
Jeffrey Fleetham, Director
Registrar of Contractors