ALJDEC decisions subject to certification as final

2018A-05614-ROC · Registrar of Contractors · 2019-06-19

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: March 11 and June 3, 2019 APPEARANCES: Jeanette Murray for Complainant; Arthur King for Respondent on March 11, 2019, but no one appeared for Respondent on June 3, 2019 ADMINISTRATIVE LAW JUDGE: Thomas Shedden FINDINGS OF FACT 1. On January 11, 2019, the Registrar of Contractors (“ROC”) issued a Notice of Hearing setting the above-captioned matter for hearing on March 11, 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. 3. Complainant is Elite Roofing Supply. 4. Respondent, Arthur King Roofing Company, Inc. holds License No. 103187 issued by ROC. ROC’s website shows that Respondent’s license has been revoked. 5. Arthur King is Respondent’s qualifying party and an officer in the corporation. 6. Complainant sold Respondent roofing supplies for use on two jobs. Complainant did not receive payment in full and filed a complaint with ROC. 7. In its complaint, Complainant alleged that Respondent owed it $59,735.92. 8. ROC issued to Respondent a Citation showing that Respondent may have violated Ariz. Rev. Stat. section 32-1154(A)(10). 9. Through its answer to the Citation, Respondent acknowledged that it did owe Complainant the amount showing in the complaint. 10. The hearing was convened on March 11, 2019, at which time Complainant informed the tribunal that it had received a payment of $14,000 and that Respondent’s outstanding debt was $45,735.32. Mr. King acknowledged that Respondent owed this amount to Complainant. 11. The parties agreed to a payment plan and agreed to continue the hearing to allow Respondent time to make the required payments. 12. Through a status report dated April 12, 2019, Complainant informed the tribunal that Respondent had not responded to Complainant after it mailed to Respondent a promissory note, and Complainant requested that the matter be reconvened. Respondent did not file any response to Complainant’s status report. 13. The matter was set to reconvene at 8:30 a.m. Monday June 3, 2019. On Friday May 31, 2019, Respondent filed a motion to continue that did not show that it had been served on Complainant. Respondent’s stated reason for the requested continuance was to allow it more time to obtain the funds necessary to pay its debt. 14. No representative for Respondent appeared 8:30 a.m. June 3, 2019 and the matter was convened in its absence shortly after that time. 15. Complainant was informed of Respondent’s request to continue the matter and stated its object to any further continuance. The motion to continue was denied and evidence was taken. 16. Complainant presented credible evidence showing that Respondent owes Complainant $45,735.32 for materials that were provided to Respondent for its work as a contractor. 17. On June 3, 2019, after the matter was adjourned, the tribunal received from Respondent the following: Per our email last week we are unable to attend today[’]s hearing due to person/family situation. I also mentioned that we are still looking to comply and pay Elite as discussed in the last hearing, the funds we were expecting haven't be secured at this time but should be forthcoming. We left a message today with the receptionist of this also, if another date is granted we would appreciate it.

18. The tribunal took no action on Respondent’s last message because it was received after the matter had been adjourned. 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. Substantial evidence is evidence that a reasonable mind would use to reach a conclusion. See Mealey v. Arndt, 206 Ariz. 218, P.3d 892 (App. 2003). 5. 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."). 6. “Statutes shall be liberally construed to effect their objects and to promote justice.” Ariz. Rev. Stat. § 1-211(B). 7. 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). 8. 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 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)(10). 9. Respondent, through its answer, acknowledged that it owed Complainant $59,735.32. At the hearing on March 11, 2019, Respondent acknowledged that it still owed Complainant $45,735.32. The preponderance of the evidence shows that this debt is for materials provided in connection with Respondent’s license. 10. The preponderance of the evidence shows that Respondent has violated section 32-1154(A)(10). RECOMMENDED ORDER IT IS ORDERED that that Arthur King Roofing Company, Inc.’s License No. 103187 is suspended until the Registrar of Contractor receives proof showing that Arthur King Roofing Company, Inc. has paid to Elite Roofing Supply $45,735.32. 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, June 19, 2019.

/s/ Thomas Shedden Thomas Shedden Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director Registrar of Contractors -----------------------

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