ALJDEC decisions subject to certification as final

2018A-2463-NPC-ROC · Registrar of Contractors · 2018-08-28

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Desert Ready Mix LLC,

COMPLAINANT,

v.

Parker Concrete Inc,

License No: 264224

RESPONDENT.

No. 2018A-2463-NPC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: August 28, 20187

APPEARANCES: Nina Scott, Complainant’s Credit Manager, Gary Curtis,

Complainant’s President, Bruce Tabet, Complainant’s Concrete Salesman.

ADMINISTRATIVE LAW JUDGE: Randolph D. Wolfson.

_____________________________________________________________________

FINDINGS OF FACT

On April 23, 2010, the Arizona Registrar of Contractors (“the Registrar”) first issued License No. ROC264224, Class CR-9, Dual license for commercial and residential contracting to Respondent Parker Concrete, Inc. (“Parker”).

Parker’s current address of record with the Registrar is 23816 N 93rd Ave, Peoria, AZ 85383-1156

The person currently listed on Parker’s license and Qualifying Member and Officer of the Parker’s Corporation, is Lonnie Jay Parker.

On June 1, 2018, the Registrar received Complainant’s complaint against Parker’s license, which alleged that Parker owed Complainant $98,526.90 for concrete and aggregate delivered to Parker’s various job sites for use by the Parker in its performance of contracts at Parker’s projects.

The Registrar referred the Complaint to Parker for its immediate attention.

On June 18, 2018, the Registrar issued a Citation and Complaint against Parker’s license, charging A violation of A.R.S. § 32-1154(A)(10). The Registrar mailed a copy of the Citation and Complaint to Parker at its address of record, 23816 N 93rd Ave, Peoria, AZ 85383-1156.

The Registrar referred the matter to the Office of Administrative Hearings, an independent agency, to schedule and to conduct a fair hearing.

On July 13, 2018, the Registrar issued a Notice of Hearing on Complainant’s Complaint, setting a hearing on August 28, 2018 at 8:30 a.m. The Registrar sent a copy of the Notice of Hearing via certified mail to Parker at 23816 N 93rd Ave, Peoria, AZ 85383-115613. 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.”

A hearing was held on August 28, 2018 at 18:30 a.m.

Although the beginning of the duly noticed hearing was delayed twenty minutes to allow Parker additional travel time, Respondent Parker did not appear through an authorized member, officer, employee, or attorney and did not contact the Office of Administrative Hearings to request a continuance, to request to appear telephonically or to request that the time for the hearing be further delayed.

Parker presented no evidence at the hearing to defend its license.

Complainant Desert Ready Mix LLC (“Ready Mix”) presented the testimony of Nina Scot, its Accounts Manager, and submitted Parker’s August 10, 2014 credit application for an account with Ready Mix and copies of several invoices delivered to Parker that are past due and owing by Parker. The total amount past due and payable to Ready Mix per its invoices is calculated to be $98,526.90. Ms. Scott testified that in the total amount past due, there are no late charges or carrying charges assessed. The last payment to Ready Mix from Parker was in February 2018 with a check for $25,916.49. The check was dishonored as Non-Sufficient Funds. Ultimately, the $25,916.49 Parker NSF check was replaced. No further payment on invoices have been made. Ms. Scott has e-mailed Parker about payment on its debt repeatedly. Moreover, Ms. Scott testified that she e-mailed a copy of the invoices to Parker each work day since around March, 2018, but Parker has never responded to the invoices with payment. Ms. Scott provided a written notice delivered to Ready Mix advising that Parker had filed a Chapter 11 voluntary bankruptcy in the Bankruptcy Court for the Arizona District. Ms. Scott investigated the status of the Bankruptcy §341 automatic stay on the day before hearing. The Arizona Federal District Bankruptcy Court’s public case system, “Pacer” indicated that on July 27, 2018, Parker’s Chapter 11 case was dismissed by the Bankruptcy Court for failure of Parker to file required lists of creditors and failing to file the required court matrix of creditors.

CONCLUSIONS OF LAW

The Registrar of Contractors has jurisdiction over Complaint No. 2017A-4793-CHC-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). PVTS LLC dba Phoenix Valley Tree Service 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'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).

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 total amount past due and owing Ready Mix from Parker is $98,526.90.

That Parker has resolutely refused for months to respond to Ready Mix’s repeated efforts to communicate with Parker about payment of the overdue invoices delivered to Parker; that no payment on this sizeable debt has been made since February of 2018; that even though Parker was no longer under protection of the Federal Bankruptcy Court,, Parker failed to appear at the hearing in this case; and, that Parker filed a Notice of Bankruptcy with the Office of Administrative Hearings a month after the Bankruptcy Court had dismissed Parker’s bankruptcy case (but never disclosed that the case had been dismissed) are aggravating circumstances.

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).

The evidence presented and the conduct of Parker in this case discussed in paragraph 7 hereinabove, demonstrate by a preponderance of the evidence that Parker is an “...unscrupulous ... and financially irresponsible contractor.”

The Notice of Hearing that the registrar mailed to Parker at its address of record with the Registrar is reasonable. Respondent is deemed to have received notice of the hearing. A.R.S. §41-1092.04 and §41-1092.05(D).

By its failure to appear, Parker has presented virtually no evidence to defend its license. Parker has failed to meet its burden of proof.

A.R.S. § 32-1154(A), et seq., specifically includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license the “[f]ailure by 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 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.”

A general contractor’s inability to pay and nonpayment by the owner on a project are affirmative defenses that the contractor bears the burden to prove in a contractors’ administrative complaint and Citation under A.R.S. § 32-1154(A)(10).

Parker has never disputed that it owes Complainant for its provided materials and services pursuant to the parties’ credit agreement. Parker did not present any evidence to establish the affirmative defenses of its inability to pay or of the owner’s failure to pay.

Complainant, therefore, has borne its burden to establish, by a preponderance of the evidence, that Parker violated A.R.S. § 32-1154(A)(10) by Parker’s failure to pay Ready Mix $98,526.90 when due on invoices for delivery of aggregate and cement to Parker’s job sites that were used by Parker in connection with Parker's operations as a contractor when Parker had the capacity to pay. There is no showing that Parker lacked the capacity to pay,

Parker’s license should, under the facts presented in this case, be revoked unless Parker pays Ready Mix the owed and past due sum of $98,526.90.

RECOMMENDED ORDER

Based on the contractors’ law violations that were proven in this matter,

IT IS RECOMMENDED that, on the effective date of the final order in this matter, the Registrar of Contractors revoke Respondent Parker Concrete Inc.’s License Number ROC264224, Class CR-9, Dual license.

IT IS FURTHER RECOMMENDED that, if on or before the effective date of the order, the Registrar receives proof from Parker that it has paid to Ready Mix the sum of Ninety Eight Thousand Five Hundred Twenty-six Dollars and ninety cents ($98,526.90) to Complainant Desert Ready Mix LLC, by cashier’s or certified check, then the Registrar should not revoke Parker’s license but, instead, should close the Complaint and Citation in Case No. 2018A-2463-NPC-ROC.

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 will be 40 days from the date of that certification.

Done this day, August 28, 2018.

/s/ Randolph D. Wolfson

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors ctors