ALJDEC decisions subject to certification as final
2018A-1628-NPC-ROC · Registrar of Contractors · 2018-07-30
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
Southwest Restaurant Supply,
COMPLAINANT,
v.
Maverick General Contractors LLC
DBA: New Sun Energies,
License No. 293258
RESPONDENT.
No. 2018A-1628-NPC-ROC
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: July 16, 2018
APPEARANCES: Scott Storry and Kymberli Fitzpatrick for Complainant; Tiffany McDougal for Respondent
ADMINISTRATIVE LAW JUDGE: Thomas Shedden
_____________________________________________________________________
FINDINGS OF FACT
On June 1, 2018, the Registrar of Contractors (“ROC”) issued a Notice of Hearing setting the above-captioned matter for hearing on July 16, 2018 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.
Complainant is Southwest Restaurant Supply, which is a dba of Arizona Equipment Specialists, LLC. Scott Storry is the LLC’s only member.
Respondent, Maverick General Contractors LLC DBA: New Sun Energies, holds license number 293258 issued by ROC. Chris Steven Wasson is the qualifying party and the only member of the LLC.
Complainant presented the testimony of Mr. Storry, its salesman Matt Smitherman, and credit manager Kymberli Fitzpatrick.
Respondent presented the testimony of its project coordinator Tiffany McDougal.
Complainant asserts that Respondent owes Complainant $7,037 for restaurant equipment that was ordered and picked-up by John Leonard. Respondent denies that it ordered or received the equipment and asserts that Mr. Leonard submitted to Complainant a forged or falsified credit application.
On March 24, 2017, Mr. Leonard informed Complainant’s salesman Mr. Smitherman that he wanted to buy restaurant equipment from Complainant and that he wanted to open an account.
On March 24, 2017, Mr. Leonard paid for and picked up equipment using a credit card that was not issued in Respondent’s name. Mr. Leonard represented to Mr. Smitherman that he worked for Respondent and was acting on Respondent’s behalf.
Complainant did not present substantial evidence showing that Mr. Leonard was authorized to, or actually acting on, Respondent’s behalf. Respondent presented credible evidence that Mr. Leonard was not authorized to do so.
On March 24, 2018, Mr. Leonard, with the help of Celeste Padilla, submitted to Complainant a credit application purporting to be on behalf of Respondent and purporting to be signed by Respondent’s Mr. Wasson.
Complainant presented no substantial evidence to show that it conducted any actual investigation as to whether Mr. Leonard or Ms. Padilla were authorized to submit a credit application on Respondent’s behalf. At the hearing, Complainant took a position to the effect of “how were we supposed to know that the application was not genuine?”
Complainant did not present substantial evidence to show that Mr. Leonard or Ms. Padilla was authorized to submit the credit application. Respondent presented credible evidence showing that these two were not authorized to do so.
On April 9, 2018 Complainant filed with ROC its complaint against Respondent. The complaint alleges that Respondent made a purchase of $2497 on September 27, 2017 and one for $4540 on November 1, 2017.
Mr. Leonard was a contract employee of Respondent’s at one time, but that relationship ended in June or July 2017.
Respondent filed with ROC an answer to the complaint explaining that:
The account with Complainant was not opened by Respondent.
Mr. Leonard had submitted to Complainant a fictitious credit application in Respondent’s name.
Respondent was not aware an account had been opened until October 2017, when Mr. Smitherman called Respondent.
Respondent informed Mr. Smitherman of the state of affairs.
Mr. Smitherman had Mr. Leonard’s contact information, he knew what the equipment at issue had been used for.
Mr. Smitherman subsequently informed Respondent that he had been in contact with Mr. Leonard and would be correcting the account.
The address on the credit application was not Respondent’s address, nor was it Respondent’s address at the time the credit application was dated.
Mr. Wasson had not signed the credit application, nor did he authorize opening the account.
Ms. Fitzpatrick called Respondent advising that she would file a complaint with ROC if Respondent did not pay the invoices.
At the hearing, Complainant did not dispute or attempt to rebut Respondent’s account of its interaction with Mr. Smitherman.
On April 23, 2018 ROC issued a Citation alleging that Respondent may have violated Ariz. Rev. Stat. section 32-1154(A)(10).
Respondent filed an Answer to the Citation denying the allegation, and in which it restated the defenses it raised in its answer to the complaint and provided that:
Respondent had not received any materials or services from Complainant and it had not received any money in payment for the invoices.
Mr. Smitherman had been helpful and advised Respondent that he would have the account changed to the responsible party [i.e., Mr. Leonard].
The address on the credit application is not Respondent’s address, and the alternate address is Mr. Leonard’s home address.
Mr. Wasson is the only member of the LLC and the only one authorized to represent Respondent and he had no knowledge of the account.
Since Mr. Smitherman contacted Respondent about the open account, Respondent has learned of other misdeeds, including theft of equipment, that they presume were perpetrated by Mr. Leonard.
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).
There was no substantial evidence adduced showing that Respondent is an unscrupulous, unqualified, or financially irresponsible contractor.
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).
It has not been shown that Respondent received from Complainant materials or services in connection with Respondent’s operations as a contractor, nor has it been shown that Mr. Leonard was authorized to act on Respondent’s behalf. To the contrary, the preponderance of the evidence shows that Respondent did not receive the materials at issue and that Mr. Leonard was not authorized to act on Respondent’s behalf.
As such, there is insufficient evidence to show that Respondent has violated section 32-1154(A)(10).
RECOMMENDED ORDER
IT IS ORDERED that that the Citation and complaint against Maverick General Contractors LLC DBA: New Sun Energies’ license number 293258 in Case No. 2018-1628 are dismissed.
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, July 30, 2018
/s/ Thomas Shedden
Thomas Shedden
Administrative Law Judge
Transmitted electronically to:
Jeffrey Fleetham, Director
Registrar of Contractors