ALJDEC decisions subject to certification as final

2017A-5547-NPC-ROC · Registrar of Contractors · 2018-02-01

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Consolidated Electrical Distributors Inc,

COMPLAINANT,

v.

Butera Electric Inc,

License No. 294020,

RESPONDENT

No. 2017A-5547-NPC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: February 1, 2018

APPEARANCES: Seth Bromer, Accounts Representative for Complainant, Edward Shannon, witness for Complainant.

ADMINISTRATIVE LAW JUDGE: Randy Wolfson

_____________________________________________________________________

FINDINGS OF FACT

The Registrar referred the matter to the Office of Administrative Hearings, an independent state agency, for an evidentiary hearing regarding a complaint against the Respondent for a failure to pay past and overdue invoices for materials in the sum of $25,948.55.

On December 8, 2017, the Registrar issued a Notice of hearing setting a hearing at 1:00 pm on February 1, 2018. The Registrar mailed copies of the Notice of hearing to the respondent at its address of record at 4618 W Park View Circle, Glendale, AZ 85310-3100.

The Notice of Hearing informed the parties that “[f]ailure to attend the scheduled hearing is likely to result in an adverse ruling against you.”

On the afternoon before the scheduled hearing, Donna Butera, not a person of record on this Respondent’s license, e-mailed the Office of Administrative Hearings requesting a continuance of the hearing. The e-mail did not indicate that a copy had been served on the Complainant and did not advise whether the Complainant concurred with or objected to the request for continuance. The ALJ directed that staff contact the Respondent to advise that with the lack of notice and the late filing of the request for continuance that the ALJ would consider the request at the time of hearing and that the hearing would proceed as scheduled.

Respondent did not request to appear telephonically. The e-mailed request stated several points: First, “...due to a medical emergency I [Donna Butera] will be unable to attend the hearing scheduled for Thursday, Feb 1, 2018. The statement fails to indicate what the nature of the emergency was or how long it would last. Moreover, that Donna Butera, a non-party, fails to state a reason why her non-appearance at the hearing is cause for a continuance. The request then avows:

For your reference:

Mark Butera is no longer in the state of Arizona

We have requested to voluntarily cancel our license

We have surrendered our EIN

We have filed Articles of Dissolution with the State of Az

And we have retained an attorney to file our bankruptcy.

With this information, please let me know if a hearing is even necessary.

At the hearing, although the start of the hearing was delayed 20 minutes, Respondent did not appear through an authorized member, employee or attorney.

After going on the record and after witnesses had been sworn, the request for continuance filed by Donna Butera was considered. The request was denied for the reason that the requestor has no standing as a non-party to make the requested continuance and that request fails to state sufficient cause to grant such a continuance request.

The Respondent was defaulted for its failure to appear after proper and reasonable notice to defend why its license should not be suspended or revoked.

Respondent did not present any evidence to defend its license.

A hearing was conducted on February 1, 2018.

Seth Bromer, Accounts Representative for the Complainant testified that the invoices dated October 2017 attached to its complaint are true and accurate; that the total due and owing the Complainant from the Respondent for materials ordered by and supplied to the Respondent is $25,948.55 exclusive of charges for interest on late paid invoices.

CONCLUSIONS OF LAW

The Registrar of Contractors has jurisdiction over Complaint No. 2017A-5547-NPC-ROC under the authority of A.R.S. § 32-1101, et seq., a section that enables the Registrar to impose disciplinary sanctions against licensees for the violations noted at A.R.S. § 32-1154(A). Butera Electric, Inc. is a licensee.

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).

“At a hearing on an agency's imposition of fees or penalties or any agency compliance order, the agency has the burden of persuasion.” Ariz. Rev. Stat. § 41-1092.07(G)(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).

The Respondent was defaulted on February 1, 2018 for its failure to appear at hearing.

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).

Under other circumstances, the assertions stated by Donna Butera in her January 31, 2018 unsworn request for continuance, i.e., that the Qualifying Party, Mark Butera, no longer resides in Arizona; the Respondent has filed Articles of Dissolution in Arizona; that the Respondent has requested to voluntarily cancel its contractor’s license and that the Respondent has retained the services of a bankruptcy attorney may be more than sufficient to find that licensee is “unscrupulous, unqualified, or financially irresponsible.” However, this information comes to the ALJ not as credible evidence given before the hearing officer under oath, but rather is provided in the form of hearsay contained in an unsworn e-mail request from a person not a party to these proceedings. Under these circumstances, the preponderance of the evidence does not show that Respondent is unscrupulous, unqualified, or financially irresponsible.

A.R.S. §32-1154, et seq. Grounds for suspension or revocation of license provides at Ariz. Rev. Stat. § 32-1154(A)(11) 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:

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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..

Ariz. Rev. Stat. § 32-1154(A)(11).

A preponderance of the evidence demonstrates that the Respondent has violated Ariz. Rev. Stat. § 32-1154(A)(11) by failing to pay the Complainant for materials rendered in connection with the licensee’s operations as a contractor in the total amount due and owing, less interest, of $25,948.55. No evidence is of record that the Respondent lacks the capacity to pay the amount due and owing the Complainant.

The license of the Respondent should be suspended until it pays the $25,948.55 it owes to the Complainant.

RECOMMENDED ORDER

IT IS RECOMMENDED it be ordered that

Thirty days after the effective date of the final Order in this matter, License No. 294020 is suspended for five days unless the Registrar of Contractors receives sufficient proof before that date that Butera Electric Inc. has paid the Respondent, with certified funds, the sum of not less than $25,948.55.

Provided that, if Butera Electric Inc. fails to provide sufficient proof to the Registrar of Contractors of payment to the Complainant of the sum of $25,948.55 before thirty days after the effective date of the final Order in this matter, then Butera Electric Inc.’s License No. 294020 is revoked.

Done this day, February 1, 2018

Randy Wolfson

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors