FINACT2018A-04838-ROC.pdf

2018A-04838-ROC · Registrar of Contractors · 2019-04-03

REGISTRAR OF CONTRACTORS OF THE STATE OF ARIZONA

Chico's Electric LLC, Case No. 2018-04838 COMPLAINANT, Docket No. 2018A-04838-ROC v. Alexon Design and Landscaping Inc, FINAL ADMINISTRATIVE DECISION DBA: Alexon Design Group, AND ORDER License No. ROC 289045 & 289046, RESPONDENT.

Under A.R.S. § 41-1092.08(B), the Registrar may review and accept, modify, or reject an

administrative law judge’s written decision. If the Registrar modifies or rejects that decision, then the

Registrar must provide written justification setting forth the reasons for the modification or rejection.

REGISTRAR’S ACCEPTANCE

In this case, a hearing was held, and the administrative law judge issued a written decision. See

Administrative Law Judge Decision, attached. The Registrar reviewed that decision and hereby accepts

it.

CONCLUSION

Because the Registrar has accepted the administrative law judge’s decision, that decision is the

final administrative decision in this case and becomes effective on May 12, 2019.

FINAL NOTE

On page 2, line 1 replace “October 1, 2018” with “October 12, 2018”.

of 2 REGISTRAR OF CONTRACTORS 1700 W. Washington St. Suite 105 – Phoenix, AZ 85007-2812 Telephone (602)542-1525 1-877-692-9762

Dated April 2, 2019

Registrar of Contractors /s/ Joseph Citelli Joseph Citelli Chief Counsel Chief of Legal Department and Recovery Fund Copy mailed via USPS First Class mail April 2, 2019 to: Respondent Alexon Design and Landscaping Inc DBA: Alexon Design Group 170 S William Dillard Dr Bldg 6 Suite 115 Gilbert, AZ 85233 Complainant Chico's Electric LLC 10522 W Earll Dr Avondale, AZ 85392

AND copy electronically mailed this same date to:

Respondent at email address on record with the Registrar Complainant at email address on record with the Registrar Office of Administrative Hearings Thomas Shedden, Administrative Law Judge

Case No. 2018-04838 / SA

of 2 REGISTRAR OF CONTRACTORS 1700 W. Washington St. Suite 105 – Phoenix, AZ 85007-2812 Telephone (602)542-1525 1-877-692-9762 RECEIVED 3.18.2019 ROC LEGAL

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Chico's Electric LLC, No. 2018A-04838-ROC DBA: ADMINISTRATIVE LAW JUDGE COMPLAINANT DECISION v. Alexon Design and Landscaping, Inc. DBA: Alexon Design Group, License No. ROC 289045, 289046 RESPONDENT

HEARING: February 28, 2019 APPEARANCES: Edward J. Marko, Esq. for Complainant; no one appeared for Respondent ADMINISTRATIVE LAW JUDGE: Thomas Shedden FINDINGS OF FACT 1. On January 22, 2019, the Registrar of Contractors (“ROC”) issued a NOTICE OF HEARING setting the above-captioned matter for hearing at 1:30 p.m. on February 28, 2019 at the Office of Administrative Hearings. 2. The Notice of Hearing shows that the hearing was being conducted on the charges made in the CITATION and complaint.1 3. Complainant is Chico’s Electric LLC. 4. Respondent, Alexon Design and Landscaping, Inc., dba Alexon Design Group, holds license numbers 289045 and 289046 issued by ROC. A review of ROC’s website on March 14, 2019 showed that both of Respondent’s licenses were suspended. 5. No representative for Respondent appeared at the scheduled hearing time and the matter was convened in its absence at about 1:45 p.m.

Office of Administrative Hearings 1740 West Adams Street, Lower Level Phoenix, Arizona 85007 (602) 542-9826 RECEIVED 3.18.2019 ROC LEGAL

6. On October 1, 2018, Complainant filed with ROC a complaint against Respondent alleging that Respondent had failed to pay Complainant $9776.50 for construction services provided by Complainant.

7. At the hearing, Complainant’s office manager Julieta Corral, provided

credible testimony that: Complainant had referred the matter to a collections agency;

Respondent had made payments to Complainant, but as of the hearing date,

Respondent still owed Complainant a total of $6296.50; Respondent had last made a

payment to Complainant on December 12, 2018; and although Respondent had

submitted two checks since that date, both were returned for insufficient funds.

CONCLUSIONS OF LAW

1. 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. 2. “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). 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.").

The NOTICE OF HEARING does not provide the date the CITATION was issued or when the complaint was issued or filed. There appears to be no dispute that ROC issued the CITATION on December 26, 2018, or RECEIVED 3.18.2019 ROC LEGAL

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. 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).

8. The preponderance of the evidence to show that Respondent has violated

section 32-1154(A)(10). Consequently, ROC has authority to discipline Respondent’s

licenses.

9. Respondent’s failure to appear at the hearing is a factor in aggravation.

RECOMMENDED ORDER

IT IS RECOMMENDED that on the effective date of the final order in this matter Alexon Design and Landscaping, Inc., dba Alexon Design Group, license numbers 289045 and 289046 be suspended until the Registrar receives proof that Alexon has paid to Complainant $6296.50. 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, March 14, 2019.

/s/ Thomas Shedden Thomas Shedden Administrative Law Judge Transmitted electronically to:

Jeffrey Fleetham, Director Registrar of Contractors

that Complainant filed with ROC a complaint against Respondent on October 12, 2018.