ALJDEC decisions subject to certification as final

2018A-3831-ROC · Registrar of Contractors · 2019-01-04

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: December 20, 2018 APPEARANCES: Nathan Warner for Complainant; Paul Gomez for Respondent ADMINISTRATIVE LAW JUDGE: Thomas Shedden FINDINGS OF FACT 1. On October 26, 2018, the Registrar of Contractors (“ROC”) issued a Notice of Hearing setting the above-captioned matter for hearing on December 20, 2018 at the Office of Administrative Hearings. 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 Fullerform Systems Inc. 4. Respondent, US Underground LLC, holds license number 305849 issued by ROC. Pablo (“Paul”) Gomez is a member of the LLC. Mr. Gomez appeared and testified for Respondent. 5. Complainant was represented by employee Nathan Warner; Mr. Warner and Danny Koellen testified for Complainant. 6. Respondent is constructing irrigation works and ordered from Complainant a custom-made metal screen to cover a weir box. The screen did not fit and a second screen was ordered. 7. Respondent has not paid Complainant $1900 for the second screen. 8. Mr. Gomez argued that Respondent was justified in not paying for the second screen because the first one was not build according to the drawing or plan provided by the engineer. 9. After reviewing the engineer’s drawing for the first screen, Mr. Warner determined that that drawing did not have all the necessary information and he prepared his own drawings. 10. As pertinent to this matter, Mr. Warner’s drawings show a 3- inch by 3-inch iron border, whereas the engineer’s drawing called for a 1.5-inch by 1.5-inch border. 11. On December 20, 2016, Mr. Gomez signed-off on Mr. Warner’s drawings approving the design for the first screen and acknowledging that there were no returns on custom built items. 12. At the hearing, Mr. Gomez testified to the effect that he had not looked closely at Mr. Warner’s drawings when he signed-off and ordered the first screen. 13. The first screen was built and delivered but did not fit the weir box. According to Mr. Gomez, the first screen did not fit because 3-inch iron was used where the engineer’s plan called for 1.5-inch iron. 14. The engineer got involved directly with Complainant and a second screen was ordered and built. 15. When Mr. Gomez picked up the second screen, he assured Fullerform that it would be paid for the second screen. 16. Mr. Gomez subsequently informed Fullerform that it would not pay for the second screen because the project owner was unwilling to pay for that screen. 17. On August 17, 2018 Complainant filed with ROC its complaint against Respondent alleging non-payment of $1900.00 when due. 18. On August 24, 2018 ROC issued a Citation alleging that Respondent may have violated Ariz. Rev. Stat. section 32- 1154(A)(10). 19. At the hearing, Mr. Gomez sought to justify Respondent’s position by arguing to the effect that Complainant acquiesced to providing the second screen as a replacement for the first screen through emails that the parties were exchanging. These emails do not support this argument, but rather show Complainant’s position that the first screen was built in conformity with the drawings approved by Mr. Gomez. 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. 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. 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 . . . .” Ariz. Rev. Stat. § 32-1154(A)(10). 8. The preponderance of the evidence shows that Mr. Gomez assured Complainant that it would be paid for the second screen when he took delivery of that screen. Mr. Gomez’s promise to pay Complainant has gone unfulfilled, which raises questions about Respondent’s scruples. 9. Respondent’s argument that it should not pay for the second screen because the first was not built to the engineer’s specifications is unavailing because the first screen was built to the specifications that Mr. Gomez approved. 10. Although it appears that Respondent has not been paid for the second screen, there was no evidence adduced to show that Respondent does not have the capacity to pay Complainant the $1900.00 at issue. 11. The preponderance of the evidence shows that Respondent has violated Ariz. Rev. Stat. section 32-1154(A)(10). RECOMMENDED ORDER IT IS ORDERED that that US Underground LLC, license number 305849 is suspended until the Registrar receives and accepts written verification that US Underground LLC has paid to Fullerform Systems Inc. $1900.00 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, January 4, 2019.

/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 August 24, 2018, or that Complainant filed with ROC a complaint against Respondent on August 17, 2018.

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