ALJDEC decisions subject to certification as final

2018A-04838-ROC · Registrar of Contractors · 2019-03-14

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

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. 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."). 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 ----------------------- [1] 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 that Complainant filed with ROC a complaint against Respondent on October 12, 2018.

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