ALJDEC decisions subject to certification as final

2018A-309-NPC-ROC · Registrar of Contractors · 2018-04-09

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

San-Co Concrete LLC,

COMPLAINANT,

v.

JGL Consulting LLC,

License No: 274797

RESPONDENT.

No. 2018A-309-NPC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: April 9, 2018

APPEARANCES: Oscar Sanchez, Complainant, Ivan Sanchez, Complainant, Rod Galarza, counsel for the Complainant.

ADMINISTRATIVE LAW JUDGE: Randolph D. Wolfson

_____________________________________________________________________

FINDINGS OF FACT

On January 22, 2018, San-Co Concrete LLC [hereinafter, the “Complainant”] filed a complaint with the Arizona Registrar of Contractors [hereinafter, the “Registrar”] alleging non-payment by JGL Consulting, LLC [hereinafter “Respondent”] for several invoices.

On February 6, 2018, the Registrar issued a citation against the Respondent alleging violations of A violation of A.R.S. § 32-1154(A)(10).

The Registrar referred the matter to the Office of Administrative Hearings, an independent state agency, for an evidentiary hearing regarding a complaint against the Respondent for failure to pay the Complainant.

On December 8, 2017, the Registrar issued a Notice of hearing setting a hearing at 10:00 am on April 9, 2018. The Registrar mailed copies of the Notice of hearing to the respondent at tis address of record.

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.”

An April 5, 2018 Motion to Continue was denied. By a letter filed with the Office of Administrative Hearings on the date of hearing this matter, April 9, 2018, the Respondent informed the ALJ that it did not intend to appear at the properly noticed hearing in this matter for the reason that the Respondent is no longer in business, that Respondent did not want to “...lose a day from our business, income for an entire day to protect a closed business.”

A hearing was held on April 9, 2018.

Although the start of the hearing on April 9, 2018 was delayed 20 minutes, the Respondent did not appear through an authorized member, employee, or attorney either in person or telephonically. Consequently, Respondent did not present any evidence to defend its license.

Respondent presented four exhibits to lay its foundation that Complainant delivered the Respondent four invoices, each in excess of $750.00, which remain unpaid for concrete work, materials and supplies that Respondent contracted for from the Respondent. The exhibits offered and admitted into the record of this case. The total of unpaid invoices as of the date of the hearing was $7,885.00. [See Exhibits R-1, R-2, R-3 and R-4].

Respondent counsel noted that the contract between the parties [Exhibit 1] provides for the payment of attorney fees and costs related to collection efforts and asserts a claim of $5,000.00. The contract [Exhibit R-1] has no attorney fee/costs language. The invoices do contain a clause allowing for attorney fees and costs occasioned by collection efforts for non-payment. The invoices are unsigned.

The Respondent’s contractor’s license has been suspended since December 20, 2017 for Lack of a Qualifying Party.

CONCLUSIONS OF LAW:

The Registrar of Contractors has jurisdiction over Complaint No. 2018A-309-NPC-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). Respondent JGL Consulting LLC is a licensee.

Respondent’s contractor license 274797 is now and has been in a suspended status since December 20, 2017 and is, therefore, barred from conducting business as a licensed contractor under license 274797

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.

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).

The Respondent presented no evidence.

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).

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

There is no evidence whether Respondent lacks the capacity to pay nor any evidence whether Respondent has received sufficient monies as payment for the particular construction work project or operation for which the services or materials were rendered or purchased

Complainant has demonstrated by a preponderance of the evidence that the Respondent violated A.R.S. § 32-1154(A)(10) by Respondent’s failure to pay Complainant’s invoices in the total amount of $7,885.00 when due for materials and services rendered in connection with the licensee's operations as a contractor.

RECOMMENDED ORDER

IT IS RECOMMENDED on the effective date of this Order, the Respondent’s license shall be revoked until sufficient proof has been provided to the Registrar that Respondent has paid the Complainant, in certified funds, the sum of $7,885.00.

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, April 9, 2018.

/s/ Randolph D. Wolfson

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors