FINACT2018A-3304-NPC-ROC.pdf

2018A-3304-NPC-ROC · Registrar of Contractors · 2018-12-11

REGISTRAR OF CONTRACTORS OF THE STATE OF ARIZONA

Pina Plastering and Stucco Inc., Case No. 2018-3304 COMPLAINANT, Docket No. 2018A-3304-NPC-ROC v. FINAL ADMINISTRATIVE DECISION Gramling Development, LLC, AND ORDER License No. 180270, RESPONDENT.

Under A.R.S. § 41-1092.08(B), the Registrar may review and accept, modify, or reject an administrative law judge’s written decision. If the Registrar modifies or rejects that decision, then the Registrar must provide written justification setting forth the reasons for the modification or rejection. REGISTRAR’S ACCEPTANCE In this case, a hearing was held, and the administrative law judge issued a written decision. See Administrative Law Judge Decision, attached. The Registrar reviewed that decision and hereby accepts it. CONCLUSION Because the Registrar has accepted the administrative law judge’s decision, that decision is the final administrative decision in this case and becomes effective on January 15, 2019. FINAL NOTE On page 2, ¶ 4 replace “Respondent did not supply any information to the Registrar regarding Complaint No. 2018-3304 by August 09, 2018” with “On August 3, 2018, the Respondent supplied information to the Registrar regarding Complaint No. 2018-3304 by August 09, 2018.”

of 2 REGISTRAR OF CONTRACTORS 1700 W. Washington St. Suite 105 – Phoenix, AZ 85007-2812 Telephone (602)542-1525 1-877-692-9762 Dated December 6, 2018.

Registrar of Contractors /s/ Joseph Citelli Joseph Citelli Chief Counsel Chief of Legal Department and Recovery Fund Copy mailed via USPS First Class mail December 6, 2018 to: Respondent Gramling Development LLC 11036 E Balancing Rock Rd Scottsdale, AZ 85262 Complainant Pina Plastering and Stucco Inc 841 N 62nd Ave Phoenix, AZ 85043

AND copy electronically mailed this same date to:

Respondent at email address on record with the Registrar Complainant at email address on record with the Registrar Office of Administrative Hearings Jenna Clark, Administrative Law Judge

Case No. 2018-3304 / AN

of 2 REGISTRAR OF CONTRACTORS 1700 W. Washington St. Suite 105 – Phoenix, AZ 85007-2812 Telephone (602)542-1525 1-877-692-9762 RECEIVED 11.15.2018 ROC LEGAL

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Piña Plastering and Stucco Inc. No. 2018A-3304-NPC-ROC COMPLAINANT, ADMINISTRATIVE LAW JUDGE v. DECISION Gramling Development LLC License No: 180270 RESPONDENT.

HEARING: October 29, 2018 at 1:00 PM. APPEARANCES: Shawn David Widener appeared on behalf of Piña Plastering and Stucco Inc. (“Complainant”). No appearance(s) on behalf of Gramling Development LLC (“Respondent”) or the Arizona Registrar of Contractors (“Registrar”). ADMINISTRATIVE LAW JUDGE: Jenna Clark. _____________________________________________________________________ After review of the hearing record in this matter, the undersigned Administrative Law Judge makes the following Findings of Fact and Conclusions of Law, and issues this Recommended Order to the Director of the Registrar. FINDINGS OF FACT BACKGROUND AND PROCEDURE 1. Pursuant to ARIZ. ADMIN. CODE R4-9-117, Administrative Notice is taken of Respondent’s license file as shown on the Registrar’s public website October 29, 2018. On November 12, 2002, the Registrar issued License No. 180270 for B General Residential contracting license to Respondent.1 Andrew Joseph Gamling is listed as the Qualifying Party/Member on the license. The address of record for the license is 11036 E Balancing Rock Road, Scottsdale, Arizona 85262-4532. There is no current bond listed for the license.2 There is one prior discipline listed against the license, and

See https://roc.az.gov/contractor-search?Id=a0Yt000000ACGlkEAH. 2 Two surety bonds are listed as cancelled for the license effective September 03, 2018, and September 22, 2018. Each bond was for $9,000.00. Office of Administrative Hearings 1740 West Adams Street, Lower Level Phoenix, Arizona 85007 (602) 542-9826 RECEIVED 11.15.2018 ROC LEGAL

there are two open cases on the license – one of which is presumably Complainant’s. The license is also listed as suspended. 2. On July 19, 2018, the Registrar received a complaint from Complainant

alleging nonpayment of services against Respondent.3 The Registrar designated it

Complaint No. 2018-3304 and assigned the case to Eric Ulinger in their legal

department.

3. On July 25, 3018, the Registrar issued a letter to Respondent providing

notice of Complainant’s complaint, and informed Respondent that it was free to raise

any affirmative defense(s) or provide additional information by August 09, 2018.4

4. Respondent did not supply any information to the Registrar regarding

Complaint No. 2018-3304 by August 09, 2018.

5. On August 09, 2018, the Registrar issued a CITATION to Respondent for an

alleged violation of ARIZ. REV. STAT § 32-1154(A)(10).5 Respondent was notified that a

failure to provide an ANSWER by August 24, 2018, would be deemed as an admission of

Respondent’s commission of the act(s) charged in the underlying complaint, pursuant

to ARIZ. REV. STAT § 32-1155(B), and could result in discipline against Respondent’s

license including suspension or revocation.6 6. Respondent did not submit an ANSWER to the Registrar by August 09, 2018. 7. On September 07, 2018, the Registrar issued a NOTICE OF HEARING setting the above-captioned matter for hearing at 1:00 p.m. on October 29, 2018, at the Office of Administrative Hearings, an independent state agency. The NOTICE OF HEARING shows that the hearing was being conducted on the charges made in the CITATION and COMPLAINT. HEARING EVIDENCE 8. Mr. Widener appeared on behalf of Complainant as a witness. There were no appearance(s) on behalf of Respondent despite the tribunal affording a five-minute See the Registrar’s electronic file at Intake Complaint Submittal1.pdf. See the Registrar’s electronic file at Notice of Administratively Complete Complaint1.rtf. See the Registrar’s electronic file at Rch421 Citation No Pay1.rtf; see also Lg Misc Corres1.pdf. 6 See the Registrar’s electronic file at Rch421 Citation No Pay1.rtf. RECEIVED 11.15.2018 ROC LEGAL

grace period prior to commencing the hearing. The NOTICE OF HEARING and Registrar’s electronic file were admitted into the record as exhibits. 9. Complainant and Respondent have had a professional relationship since

approximately 1998, whereby Respondent would hire Complainant as a plaster/stucco

subcontractor on projects.

10. Mr. Widener testified that on August 25, 2017, Complainant and

Respondent entered into a $60,000.00 subcontractor service contract for a new

residential build. Per Mr. Widener, Complainant took over the project after the

homeowner fired Respondent in July of 2018 for failing to pay a number of

subcontractors on the project. At that time Respondent owed Complainant $12,000.00

on the contract.

11. Mr. Widener testified that sometime in July or August of 2018 Respondent

forged Complainant’s signature on a lien release form. When questioned, Respondent

admitted that he “Had to do it to keep the money flowing.”

12. Mr. Widener testified that during the Registrar’s investigation of Complaint

No. 2018-3304 Respondent admitted that he owed Complainant $12,000.00 on their

contract. 13. Mr. Widener testified that the homeowner paid Complainant $12,000.00 so that the subcontractors could be paid and the project could be completed. CONCLUSIONS OF LAW 1. The NOTICE OF HEARING sent to Respondent’s address of record is reasonably sufficient, and Respondent is deemed to have received notice of the hearing in this matter.7 2. This matter lies within the Registrar’s jurisdiction and has been properly brought before the Office of Administrative Hearings for adjudication.8 3. 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

See ARIZ. REV. STAT. §§ 41-1092.04 and 41-1061(A). 8 See ARIZ. REV. STAT. §§ 32-1101 et seq., 32-1154(A), and 41-1092 et seq. RECEIVED 11.15.2018 ROC LEGAL

burden of establishing the affirmative defense. The standard of proof on all issues in this matter is that of a preponderance of the evidence.9 4. “A preponderance of the evidence is such proof as convinces the trier of

fact that the contention is more probably true than not.”10 A preponderance of the

evidence is “[t]he 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.”11

5. The purpose of the Registrar’s licensing statutes is to protect the public

from unscrupulous, unqualified, and financially irresponsible contractors.12

6. Statutes should be interpreted to provide a fair and sensible result.13

Statutes shall be liberally construed to affect their objects and to promote justice.14

7. ARIZ. REV. STAT. § 32-1154(A)(10) holds, in pertinent part, that 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, 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. The facts in this case are not in dispute. 9. Here, credible evidence in the record reflects that Respondent owes Complainant an outstanding balance of $12,000.00 on a valid subcontracting agreement executed between the parties in August of 2017. See ARIZ. ADMIN. CODE R2-19-119. MORRIS K. UDALL, ARIZONA LAW OF EVIDENCE § 5 (1960). BLACK’S LAW DICTIONARY at page 1220 (8th ed. 1999). See Aesthetic Property Maintenance v. Capital Indem. Corp., 183 Ariz. 74, 900 P. 2d 1210 (1995). See 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.”). RECEIVED 11.15.2018 ROC LEGAL

10. Because Respondent failed to appear at the hearing or submit any exhibits there is no evidence in the record that supports an affirmative defense by a preponderance of the evidence. Furthermore, Respondent’s failure to appear at the

hearing is considered a factor in aggravation.

11. Because Complainant established by a preponderance of the evidence

that Respondent violated ARIZ. REV. STAT. § 32-1154(A)(10), Complainant also

established cause for the Registrar to suspend or revoke Respondent’s contractor’s

license.

12. Considering the facts and circumstances of this matter, Respondent’s

license shall be revoked.

RECOMMENDED ORDER

Based on the foregoing facts and conclusions of law,

IT IS RECOMMENDED that on the effective date of the FINAL ORDER in this matter, Respondent’s Contractor’s License No. 180270 shall be revoked. Done this day, November 15, 2018. /s/ Jenna Clark Administrative Law Judge

Transmitted electronically to: Jeffrey Fleetham, Director Registrar of Contractors

14 See ARIZ. REV. STAT. § 1-211(B).