ALJDEC decisions subject to certification as final

2018A-3304-NPC-ROC · Registrar of Contractors · 2018-11-15

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

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 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 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 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. 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 ----------------------- [1] 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. [3] See the Registrar’s electronic file at Intake Complaint Submittal1.pdf. [4] See the Registrar’s electronic file at Notice of Administratively Complete Complaint1.rtf. [5] 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. [7] 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. [9] See Ariz. Admin. Code R2-19-119. [10] MORRIS K. UDALL, ARIZONA LAW OF EVIDENCE § 5 (1960). [11] BLACK’S LAW DICTIONARY at page 1220 (8th ed. 1999). [12] See Aesthetic Property Maintenance v. Capital Indem. Corp., 183 Ariz. 74, 900 P. 2d 1210 (1995). [13] 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.”). [14] See Ariz. Rev. Stat. § 1-211(B).

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