ALJDEC decisions subject to certification as final

2017A-3343-NPC-ROC · Registrar of Contractors · 2017-10-16

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Bisbee Electric LLC,

COMPLAINANT,

v.

Chaparral Builders, Inc.,

License No: 099660 & 104045

RESPONDENT.

No. 2017A-3343-NPC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: September 25, 2017

APPEARANCES: Mitchell Anderson appeared on behalf of Complainant Bisbee Electric, LLC. Jerry Foster appeared on behalf of Respondent Chaparral Builders, Inc.

ADMINISTRATIVE LAW JUDGE: Velva Moses-Thompson

_____________________________________________________________________

FINDINGS OF FACT

1. On or about April 21, 2016, Complainant Bisbee Electric, LLC. (“Bisbee”) submitted a proposal in the amount of $21,508 to Respondent Chaparral Builder, Inc. (“Chaparral”). Under the proposal, Bisbee would perform electrical construction work at Dr. Kim Perkins’s veterinary clinic.

2. Mr. Foster signed the proposal on behalf of Dr. Kim Perkins.

3. Mitchell Anderson is the owner of Bisbee. Jerry Foster is the qualifying party for Chaparral.

4. On or about June 28, 2017, Bisbee filed a Complaint against Chaparral with the Registrar of Contractors (“Registrar”) alleging non-payment in the amount of $2,769.33 for services rendered for electrical work performed under a construction contract.

5. On or about July 11, 2017, the Registrar issued a Citation against Chaparral alleging that it violated Ariz. Rev. Stat. section 32-1154(A)(10).

6. Chaparral filed a timely response to the Citation.

7. The matter was referred to the Office of Administrative Hearings for an evidentiary hearing.

8. A hearing was held on September 25, 2017.

9. At hearing, Mr. Anderson testified that Chaparral and Dr.

Perkins paid him for the electrical work that he performed at Dr. Perkins’s veterinary office. Mr. Anderson testified that Bisbee was a subcontractor of Chaparral.

10. Mr. Foster contended that he did not have a contract with Chaparral.

Mr. Foster testified that Dr. Perkins insisted on hiring Bisbee for the electrical work. Mr. Foster testified that he wanted another electrician to perform the electrical work.

Mr. Foster testified that Dr. Perkins told him that he “already had a deal with Bisbee” for the electrical work.

11. Mr. Foster stated that Bisbee began work on the project before the proposal was signed. Mr. Foster testified that Dr. Perkins asked him to sign the proposal on his behalf. Mr. Foster testified that the proposal was not signed until the middle of the project. Mr. Foster testified that he made some payments to Bisbee, but that midway through the project, Bisbee received all payments directly from Dr. Perkins.

CONCLUSIONS OF LAW

1. 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 evidence presented at hearing established that Dr. Perkins agreed to pay Chaparral for worked performed at his veterinary office. Although Chaparral made some payments to Bisbee, Chaparral did not intend to be bound to pay Bisbee for the electrical performed. The preponderance of the evidence does not show that Chaparral owed Bisbee $2,769.33 for services rendered.

9. The preponderance of the evidence shows that Chaparral did not enter into a contract with Bisbee.

10. The preponderance of the evidence does not show that Chaparral violated Ariz. Rev. Stat section 32-1154(A)(10) as alleged.

ORDER

IT IS ORDERED that the Citation and Complaint in Case No. 2017A-3343 is 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, October 20, 2017.

/s/ Velva Moses-Thompson

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors