ALJDEC decisions subject to certification as final

2018A-893-NPC-ROC-RMD · Registrar of Contractors · 2018-07-05

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Monterrey Tile AZ LLC,

COMPLAINANT,

v.

America Stone Inc ,

License No: 219228

RESPONDENT.

No. 2018A-893-NPC-ROC-RMD

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: 1:00pm, May 21, 2018

APPEARANCES: Jessica Soto, Complainant, Juan Aguirre, Respondent

ADMINISTRATIVE LAW JUDGE: Randolph D. Wolfson

_____________________________________________________________________

FINDING OF FACTS

On April 3, 2018 the Registrar of Contractors (“ROC”) issued a Notice of Hearing setting the above-captioned matter for hearing at 1:00 p.m. May 21, 2018 at the Office of Administrative Hearings in Phoenix, Arizona.

Respondent holds license number 219228 issued by ROC.

On March 23, 2015, Respondent submitted a credit application to the Complainant and upon the application, credit was granted Terms under the credit agreement provides payment to Complainant is due 30 days from the date of the receipt of merchandise.

Respondent ordered and received delivery from Complainant at Respondent’s job site an order of grey travertine pavers and a quart of acid magic which was invoiced by Complainant on October 20, 2017 for $4,997.66.

At the hearing in this case, Ms. Jessica Soto testified to the effect that Respondent had made one payment reducing his balance to, without charges for late payment or penalties, to $3,997.66. Ms. Soto said the Respondent made promises to pay the balance but never did.

On or about February 6, 2018, Complainant filed with ROC a Complaint against Respondent.

On or about March 13, 2018, ROC issued a Citation charging America Stone, Inc. with the commission of an act or acts that would, if proved, be cause for the suspension or revocation of America Stone, Inc.’s license under A.R.S. § 32-1154(A)(10), which states:

The holder of a license or any person listed on a license pursuant to this chapter shall not commit any of the following acts or omissions:

. . .

Failure by a licensee or agent or official of a 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.

On May 21, 2018, hearing was conducted on the Citation.

Ms. Jessica Soto testified for the Complainant that as of the date of the hearing the total past due and owing, without addition of finance charges or penalties, is $4,997.66.

Respondent, Juan Aguirre, testified that he is unable to pay the amount owing. He testified that although he was paid by his customer for the labor and materials he ordered, he did not pay the received funds to the Complainant. He said he is able to perform work and has small jobs that he does for others, but his license is currently suspended for lack of bond. He said he would like to make $500.00 payments on the debt, but was not able to state when he intended to start his payments. No evidence was presented by Respondent in support of his contention that he lacks the capacity to pay other than his simple statement that he could not pay the amount owed.

CONCLUSIONS OF 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.

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 effect 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).

Ariz. Rev. Stat section 32-1154(A) provides that:

The holder of a license or any person listed on a license pursuant to this chapter shall not commit any of the following acts or omissions: .... 10. Failure by a licensee or agent or official of a 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.

The Respondent has not, by a preponderance of the evidence, met his burden to prove that he lacks the capacity to pay.

The preponderance of the evidence shows that Respondent violated Ariz. A.R.S §32-1154(A)(10) as alleged.

By a preponderance of the evidence, Respondent owes a balance to the Complainant on its October 20, 2017 invoice from Complainant, without additions for late payment charges or penalties, the total sum of $3,997.66.

RECOMMENDED ORDER

IT IS ORDERED that on the effective date of the final Order in this matter America Stone Inc.’s License No: 219228 is revoked unless ROC receives and accepts written verification that America Stone Inc. has paid to Monterrey Tile AZ LLC $3,997.66.00 in certified funds.

Done this day, July 5, 2018.

/s/Randolph D. Wolfson Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors