ALJDEC decisions subject to certification as final
2017A-5227-NPC-ROC · Registrar of Contractors · 2018-01-10
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
D S E Contracting Inc,
COMPLAINANT,
v.
Arizona Pool & Landscape Construction LLC,
License No. 296198, 296199
RESPONDENT.
No. 2017A-5227-NPC-ROC
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: December 28, 2017
APPEARANCES: No one appeared for Respondent; Kent Leach and Amanda Leach appeared for Complainant
ADMINISTRATIVE LAW JUDGE: Thomas Shedden
_____________________________________________________________________
FINDINGS OF FACT
On November 14, 2017, the Registrar of Contractors (“ROC”) issued a Notice of Hearing setting the above-captioned matter for hearing at 8:30 a.m. December 28, 2017 at the Office of Administrative Hearings.
The Notice of Hearing shows that the hearing was being conducted on the charges made in the Citation and Complaint.
No representative for Respondent appeared and the matter was convened in its absence at about 8:50 a.m.
Complainant D S E Contracting, Inc. holds license number 263077 issued by ROC. Kent Leach is the qualifying party.
Respondent Arizona Pool & Landscape Construction, LLC holds license numbers 296198 and 296199 issued by ROC. Jonathan Ronald Charnock is Respondent’s qualifying party and owner.
On August 9, 2017, Complainant and Respondent entered an agreement under which Respondent hired Complainant to provide and install shotcrete at the Sikora project in Rio Verde Arizona.
On August 11, 2017, Complainant completed the project, installing 41.5 cubic yards of shotcrete.
Complainant submitted to Respondent an invoice for $6891.42. Respondent did not pay Complainant and, on October 16, 2017, Complainant filed with ROC a Non-Payment Complaint Form.
On October 25, 2017, ROC issued to Respondent a Citation for Alleged Violation of [Ariz. Rev. Stat. section] 32-1154(A)(10).
Through an email to ROC dated November 6, 2017, Respondent acknowledged receipt of the Citation, informing ROC that there were several payment complaints against it and that it intended to pay all of these by December 1st.
At the hearing, Complainant provided credible testimony showing that Respondent had not made any payments to Complainant.
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).
Among the grounds for suspension or revocation of a contractor’s license is a “[f]ailure by [the] 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 . . . .” Ariz. Rev. Stat. § 32-1154(A)(10).
The preponderance of the evidence shows that Respondent violated Ariz. Rev. Stat. section 32-1154(A)(10) by failing to pay Complainant $6891.42 when due.
Respondent’s licenses should be revoked unless it pays to Complainant $6891.42.
RECOMMENDED ORDER
IT IS RECOMMENDED that Arizona Pool & Landscape Construction, LLC’s license numbers 296198 and 296199 be revoked on the effective date of the final Order in this matter unless the Registrar receives proof that Respondent has paid $6891.42 to D S E Contracting, Inc. prior to that time.
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, January 10, 2018
/s/ Thomas Shedden
Thomas Shedden
Administrative Law Judge
Transmitted electronically to:
Jeffrey Fleetham, Director
Registrar of Contractors