FINACT2018A-4086-ROC.pdf

2018A-4086-ROC · Registrar of Contractors · 2019-01-25

REGISTRAR OF CONTRACTORS OF THE STATE OF ARIZONA

Top That Roofing, LLC, Case No. 2018-4086 COMPLAINANT, Docket No. 2018A-4086-ROC v. FINAL ADMINISTRATIVE DECISION Parker Development Inc., AND ORDER License No. ROC 296754, 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 March 4, 2019. Dated January 23, 2019.

Registrar of Contractors

/s/ Joseph Citelli Joseph Citelli Chief Counsel Chief of Legal Department and Recovery Fund

of 2 REGISTRAR OF CONTRACTORS 1700 W. Washington St. Suite 105 – Phoenix, AZ 85007-2812 Telephone (602)542-1525 1-877-692-9762 Copy mailed via USPS First Class mail January 23, 2019 to: Respondent Parker Development Inc PO Box 981 Pinedale, AZ 85934 Complainant Top That Roofing LLC PO Box 81 Snowflake, AZ 85937 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 Thomas Shedden, Administrative Law Judge Case No. 2018-4086 / 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 1.7.2019 ROC LEGAL

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Top That Roofing, LLC, No. 2018A-4086-ROC

COMPLAINANT , ADMINISTRATIVE LAW JUDGE DECISION v.

Parker Development Inc., License No. ROC 296754,

RESPONDENT. HEARING: December 17, 2018 APPEARANCES: Darrell Petersen and Crystal Petersen for Complainant; David Gideon 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 17, 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 Top That Roofing, LLC. Darrell C. Peterson is Complainant’s qualifying party and a member of the LLC. 4. Respondent, Parker Development Inc. holds License No. 296754 issued by ROC. David Matthew Gideon is Respondent’s qualifying party and an officer in the corporation. 5. Respondent hired Complainant to perform roofing work at a project referred to as Hopeful Treasures. The total cost of the roofing work was $50,620.00.

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 September 24, 2018, or that Complainant filed with ROC a complaint against Respondent on August 30, 2018. Office of Administrative Hearings 1740 West Adams Street, Lower Level Phoenix, Arizona 85007 (602) 542-9826 RECEIVED 1.7.2019 ROC LEGAL

6. On August 30, 2018, Complainant filed with ROC its complaint against Respondent. On September 24, 2018 ROC issued a CITATION alleging that Respondent may have violated ARIZ. REV. STAT. section 32-1154(A)(10).

7. Respondent has paid Complainant $24,100.00, leaving a balance due of

$26,520.00. Respondent acknowledges that it owes Complainant $26,520.00 for

Complainant’s work on the project.

8. Respondent acknowledges that it has been paid for the Hopeful Treasures

project.

9. According to Mr. Gideon, Respondent does not have sufficient resources

to pay to Complainant the balance due of $26,520.00 and that Respondent is awaiting

payment for another job and would pay Complainant after it received that payment.

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, 76 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 RECEIVED 1.7.2019 ROC LEGAL

(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. Respondent acknowledges that it owes Complainant $26,520.00. The

preponderance of the evidence shows that this amount is for services rendered in

connection with Respondent’s license and that Respondent has been paid for the construction work at issue. 10. The preponderance of the evidence to show that Respondent has violated ARIZ. REV. STAT. section 32-1154(A)(10). RECOMMENDED ORDER IT IS ORDERED that that Parker Development Inc.’s License No. 296754 is suspended until the Registrar receives and accepts written verification that Parker Development Inc. has paid to Top That Roofing $26,520.00 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 3, 2019. /s/ Thomas Shedden Thomas Shedden Administrative Law Judge RECEIVED 1.7.2019 ROC LEGAL

Transmitted electronically to: Jeffrey Fleetham, Director Registrar of Contractors