ALJDEC decisions subject to certification as final

2018A-3273-NPC-ROC · Registrar of Contractors · 2018-10-05

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: October 5, 2018 APPEARANCES: Sophia Beeman and Rod Beeman for Complainant; no one appeared for Respondent ADMINISTRATIVE LAW JUDGE: Thomas Shedden FINDINGS OF FACT 1. On August 14, 2018, the Registrar of Contractors (“ROC”) issued a Notice of Hearing setting the above-captioned matter for hearing at 8:30 a.m. on October 5, 2018 at the Office of Administrative Hearings. No Representative for Respondent appeared at the scheduled time and the matter was convened in its absence at about 8:48 a.m. 2. The Notice of Hearing shows that the hearing was being conducted on the charges made in the Citation and complaint.[1] 3. Complainant is Sunbelt Drilling LLC. Sophia Beeman and Rod Beeman are members of the LLC. 4. Respondent, J & R Construction LLC, holds License No. 316956 issued by ROC. ROC’s website shows that as of the hearing date, Respondent’s license was suspended. Terri Jean Pierce is Respondent’s qualifying party. 5. Respondent’s J.D. Ipson hired Complainant to drill a well on the property of Greg McKeown, where Respondent was acting as general contractor. 6. The contract price was $17,021.46. 7. On July 18, 2018, Complainant filed with ROC a complaint showing that it had not been paid for the work it performed. 8. On July 27, 2018, ROC issued a Citation alleging that Respondent had violated Ariz. Rev. Stat. section 32-1154(A)(10). 9. As of the hearing date, Complainant had not been paid for the work at issue and it was still owed $17,021.46. 10. Complainant had entered into evidence an invoice from Respondent to Mr. McKeown showing that Mr. McKeown had paid to Respondent $17,535.93 for the well. 11. Ms. Beeman provided credible testimony to the effect that Mr. McKeown had informed Complainant that he had paid Respondent for the well and for work by many other subcontractors who also had not been paid by Respondent. Mr. McKeown had filed with ROC his own complaint against Respondent. 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. The preponderance of the evidence shows that Respondent violated section 32-1154(A)(10) by failing to pay Complainant $17,021.46 for material and services rendered in connection with Respondent’s operations as a contractor, despite the fact that Respondent has itself been paid for the material and services at issue. 10. Because Respondent has violated section 32-1154(A)(10), ROC has authority to discipline its license. 11. Respondent’s failure to appear at the hearing is considered a factor in aggravation. 12. Considering the facts and circumstances of this matter, Respondent’s license should be revoked.

RECOMMENDED ORDER IT IS ORDERED that that J & R Construction LLC’s License No. 316956 is revoked. 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 5, 2018.

/s/ Thomas Shedden Thomas Shedden Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director Registrar of Contractors ----------------------- [1] The Notice of Hearing does not provide the date the Citation was issued or when the complaint was issued or filed. There appears to be no dispute that ROC issued the Citation on July 27, 2018, or that Complainant filed with ROC a complaint against Respondent on July 18, 2018.

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