ALJDEC decisions subject to certification as final

2018A-2779-NPC-ROC · Registrar of Contractors · 2018-10-17

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: September 27, 2018 APPEARANCES: Nathan Mitchell appeared on behalf of Complainant Cemex Construction Materials South, LLC. No one appeared on behalf of Respondent Professoinal Carpentry, LLC. ADMINISTRATIVE LAW JUDGE: Velva Moses-Thompson _____________________________________________________________________ FINDINGS OF FACT 1. On August 10, 2018, the Registrar of Contractors (“Registrar”) issued a Notice of Hearing setting the above-captioned matter for hearing on September 17, 2018, by the Office of Administrative Hearings in Phoenix, Arizona. 2. No representative for Respondent Professional Carpentry Inc. dba Armstrong Custom Homes (“Armstrong”) appeared at the scheduled time and the matter was convened in its absence at about 1:20 p.m. 3. Respondent Armstrong holds license number 191668 issued by the Registrar. 4. The Notice of Hearing shows that the hearing was set to consider the charges made in the Citation and Complaint. 5. Through the Citation, the Registrar alleges that Armstrong may have violated Ariz. Rev. Stat. sections 32-1154(A)(10). 6. The Citation shows that if the Administrative Law Judge finds that if the alleged charge is valid, the Registrar may suspend or revoke C. Blackshear’s license.[1] 7. In 2017 and 2018, Cemex agreed to perform home construction work for Armstrong. Cemex performed the work under the agreement. 8. Cemex submitted the following invoices to Armstrong for the construction work which have not been paid: a. 12/11/2017 – invoice #[number redacted] - $289.16 b. 12/21/2017 --invoice #[number redacted] - $252.31 c. 1/19/2018 ---invoice#[number redacted] - $291.13 d. 1/26/2018 -- invoice #[number redacted] - $5,266.51 e. 2/5/2018 --- invoice #[number redacted] - $667 f. 2/13/2018 --- invoice #[number redacted] - $1,408.72 g. 3/2/2018 - invoice #[number redacted] - $1,520.09 h. 3/7/2018 - invoice # [number redacted] $219.94 9. On or about June 18, 2018, Cemex filed a Complaint with the Registrar alleging non payment for services and/or labor rendered. 10. Armstrong filed a timely response to the Citation. 11. The matter was referred to the Office of Administrative Hearings for an evidentiary hearing. 12. At hearing, Nathan Mitchell testified on behalf of Cemex, and submitted exhibit A.

CONCLUSIONS OF LAW 1. 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. Ariz. Rev. Stat section 32-1154(A) provides that: The holder of a license or any person listed on a license pursuant to this chapter shall not commit any of the following acts or omissions: …. 10. Failure by a licensee or agent or official of 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 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.

8. A.R.S. § 32-1154(A)(10) includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license “[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 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.” 9. Payment for “[s]ervices rendered in connection with the licensee’s operations as a contractor” does not include interest, finance charges, lien charges, or other charges that are based solely on contract terms.[2] 10. The preponderance of the evidence shows that Armstrong violated Ariz. Rev. Stat section 32-1154(A)(10) as alleged. ORDER IT IS ORDERED that on the effective date of the final Order in this matter, Professional Carpentry Inc. dba Armstrong Custom Homes License No: 191668 is revoked unless THE REGISTRAR receives and accepts written verification that Professional Carpentry Inc dba Armstrong Custom Homes has paid to Cemex Construction Materials South, LLC $10,009.86 in certified funds. 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, October 17, 2018.

/s/ Velva Moses-Thompson Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director Registrar of Contractors

----------------------- [1] The Citation shows that the Registrar could not determine whether any violations had actually occurred, which is why the matter was set for hearing. [2] See J.W. Hancock Enterprises, Inc. v. Arizona State Registrar of Contractors, 142 Ariz. 400, 406, 690 P.2d 119, 125 (Ct. App. 1984).

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