ALJDEC decisions subject to certification as final
2018A-415-NPC-ROC · Registrar of Contractors · 2018-05-22
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
Arizona Labor Force,
COMPLAINANT,
v.
Harrison Design Limited Liability Company,
License No: 220403
RESPONDENT.
No. 2018A-415-NPC-ROC
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: May 02, 2018 at 1:00 PM.
APPEARANCES: Ivan Santacruz (“Mr. Santacruz”) – Client Services Manager, appeared for Complainant. No appearances on behalf of Respondent. Dina Galassini observed.
ADMINISTRATIVE LAW JUDGE: Jenna Clark.
_____________________________________________________________________
FINDINGS OF FACT
Background and Procedure
On March 07, 2018, the Registrar of Contractors (“the ROC”) issued a Notice of Hearing setting the above-captioned matter for hearing at 1:00 p.m. on May 02, 2018 at the Office of Administrative Hearings.
The Notice of Hearing shows that the hearing was being conducted on the charges made in the Citation and Complaint.
According to the ROC’s public website, Respondent Harrison Design Limited Liability Company holds license number 220403, issued by the ROC on or about June 01, 2006. Darrell Keith Thomas (“Mr. Thomas”) is Respondent’s qualifying party/member. Respondent’s address of record on the license is 9251 E Lindner Ave. Mesa, AZ 85209-2538.
Arizona Labor Force, doing business as Labor Systems Temporary Services, is a temporary labor staffing firm operating out of Tempe, AZ.
In early-August 2017, Complainant and Respondent entered into an agreement under which Complainant would provide Respondent with temporary laborers for a project in Casa Grande, AZ whereby the labor would be billed weekly and invoiced to Respondent. Payments were scheduled to be paid thirty days after the issuance of the related invoice. The agreement was to be in place from commencement of the project until its completion.
At the hearing, Complainant submitted a total of thirteen invoices to Respondent, which were approved by Mr. Thomas, as follows:
DATE ISSUED
INVOICE NUMBER
AMOUNT BILLED
08/18/2017
1110420
$757.53
08/25/2017
1110472
$1,293.28
09/01/2017
1110514
$885.54
09/08/2017
1110572
$122.21
09/15/2017
1110630
$444.61
09/22/2017
1110670
$1,224.51
09/29/2017
1110711
$895.00
10/06/2017
1110745
$586.85
10/13/2017
1110785
$496.76
10/20/2017
1110825
$217.03
10/27/2017
1110863
$311.86
11/09/2017
1110913
$160.14
10/10/2017
1110948
$103.25
Complainant testified that it stopped sending their workers to Respondent’s project after the October 10, 2017, invoice was issued because Respondent had not made a payment on any invoice, fully or in part. The total outstanding amount owed, per the parties signed agreement, is $7,498.57.
On January 25, 2018, Complainant filed a Non-Payment Complaint Form with the ROC.
On January 30, 2018, the ROC notified Respondent of the filed complaint via email and postal mail.
On February 09, 2018, the ROC issued Respondent a Citation for Alleged Violation of Ariz. Rev. Stat. § 32-1154(A)(10).
In a letter titled Written Answer to Citation and Complaint, dated February 26, 2018, Respondent acknowledged receipt of the Citation. In its answer, Respondent agreed that it hired temporary construction workers from Complainant to repair alleged substandard work performed by the original subcontractor hired on the project. Respondent did not explain why it failed to pay for services rendered by Complainant. Instead, Respondent alleged that it was seeking reimbursement from the homeowner of the project, and either a bond and/or insurance payment from the subcontractor.
Respondent did not appear at the hearing and therefore did not provide evidence regarding the alleged violations.
Complainant provided credible testimony and supporting evidence showing that Respondent had not made any payments to Complainant.
Administrative notice is taken of Respondent’s prior License record as reflected on the Registrar’s public website on May 02, 2018. The following is a record of Respondent’s License No. 220403: suspended for non-renewal from July 01, 2017, through July 20, 2017, suspended for lack of bond August 10, 2016, through December 22, 2016, suspended for recovery fund payout credential May 15, 2013, through December 22, 2016, suspended until compliance February 05, 2016, through December 22, 2016, subject to finite suspension February 05, 2016, through February 11, 2016, subject to finite suspension June 14, 2016, through June 13, 2016, and suspended for non-renewal July 07, 2011, through August 23, 2011. Such prior License record also reflects that there is one open complaint against Respondent’s license, and one prior complaint that was resolved and/or settled.
CONCLUSIONS OF LAW
The Notice of Hearing sent to Respondent’s address of record is sufficient, and Respondent is deemed to have received notice of the hearing in this matter.
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.
“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).
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).
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.”).
“Statutes shall be liberally construed to affect their objects and to promote justice.” Ariz. Rev. Stat. § 1-211(B).
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).
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).
The preponderance of the evidence shows that Respondent violated Ariz. Rev. Stat. § 32-1154(A)(10) by failing to pay Complainant monies owed, when due.
It is appropriate to suspend, and possibly revoke, Respondent’s license pursuant to Ariz. Rev. Stat. § 32-1154(B) unless it remits monies owed to Complainant.
RECOMMENDED ORDER
Based on the foregoing,
IT IS RECOMMENDED that on the effective date of the final order in this matter, Harrison Design Limited Liability Company, license number 220403 be suspended for five (5) business days.
IT IS FURTHER RECOMMENDED that thirty calendar days after the effective date of the final order in this matter, Respondent’s contractor’s license shall be revoked unless Respondent has provided satisfactory written evidence to the ROC that it has paid Complainant Arizona Labor Force seven thousand four hundred ninety-eight dollars and fifty-seven cents ($7,498.57) buy certified funds. If Respondent provides such satisfactory written proof within 30 days of the effective date of the final order, no such revocation shall take place and the ROC shall close Case No. 2018-415.
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, May 22, 2018.
/s/ Jenna Clark
Administrative Law Judge
Transmitted electronically to:
Jeffrey Fleetham, Director
Registrar of Contractors