ALJDEC decisions subject to certification as final

2019A-00253-ROC · Registrar of Contractors · 2019-04-22

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: April 3, 2019 APPEARANCES: Norman Cenerini, Complainant’s Qualifying Party, Romona Gallo, Complainant’s employee and bookkeeper, Miguel Perindo, Respondent employee, Josue Martinez, Respondent’s employee. ADMINISTRATIVE LAW JUDGE: Randolph D. Wolfson _____________________________________________________________________ FINDINGS OF FACT Respondent AR-ME Building & Design LLC, (“AR-ME”), holds license number 295732 issued by ROC.[1] Aaron Rico Rodriguez, is ARE-ME’s Qualifying Party. On January 15, 2019, J M C Design & Excavation Inc. (“J M C”) filed a written Complaint against AR-ME with the Arizona Registrar of Contractors.[2] The Registrar of Contractors (“ROC”) issued a Notice of Hearing setting the above-captioned matter for hearing on April 3, 2019, at the Office of Administrative Hearings in Phoenix, Arizona. Hearing was conducted on April 3, 2019 as stated in the Notice of Hearing. Aaron Rico Rodriguez, the Qualifying Party for AR-ME, failed to appear at hearing. No reason has been stated for Mr. Rodriguez’s absence. Instead, two employees of AR-ME, Miguel Perindo and Josue Martinez attended the hearing at Mr. Rodriguez’s behest. Neither Mr. Perindo nor Mr. Martinez are listed on Respondent’s license. Mr. Perindo is a Spanish only speaker. No Spanish interpreter was requested for the hearing and none was provided. Neither Mr. Perindo nor Mr. Marinez testified in this case. More to the point, AR-ME called no witnesses in its Case-in-Chief, conducted no cross-examination and made no opening statement or closing arguments in the case. AR-ME is a General Contractor. J M C is an excavation company and, in this case, a sub-contractor of AR-ME. AR-ME was routinely invoiced by J M C for sub-contracted excavation work, concrete and delivery.[3] The January 15, 2019 J M C Complaint against AR-ME alleges that J M C had not been paid $3,400.00 that was invoiced over a year and half ago for excavation work performed by J M C to excavate a catch basin. J M C alleged AR-ME remains unpaid for a project referred to as lot 102, Desert Mountain Apache Park [the “Project”], that J M C’s work was completed and that a Certificate of Occupancy was issued October 11, 2018 for the Project indicating that AR-ME had completed the project.[4] On January 30, 2019, ROC issued a Citation alleging that J M C may have violated Ariz. Rev. Stat. section 32-1154(A)(10). Testifying for J M C, Norman Cenerini, Complainant’s Qualifying Party, confirms that AR-ME was invoiced in January of 2018 in the amount of $3,400.00 for J M C excavating a catch basin on the project and dispite his company’s efforts to collect the amount due, no payment has been made on the outstanding invoice. No evidence was offered and no witnesses called by AR-ME.

CONCLUSIONS OF LAW 1. 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. 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). 3. Substantial evidence is evidence that a reasonable mind would use to reach a conclusion. See Mealey v. Arndt, 206 Ariz. 218, P.3d 892 (App. 2003). 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. 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.

8. The evidence showing that AR-ME failed to pay J M C the sum $3,400.00 for excavation work performed in connection with the AR-ME’s Project when AR-ME had the capacity to do so is uncontested. 9. The preponderance of the evidence does show that J M C violated A.R.S. §32-1154(A)(10). 10. Review of the Registrar’s Public Access Website on April 19, 2019 reflects that AR-ME’s license, first issued December 11, 2014, has never been disciplined. AR-ME’s pristine record is a mitigating factor. Respondent’s conduct ignoring payment for over a year and a half for invoiced work completed and Respondent’s Qualifying Party’s failure or refusal to appear for hearing on the Citation and Complaint are aggravating factors. Aggravating factors outweigh mitigating factors in this matter.

RECOMMENDED ORDER IT IS RECOMMENDED it be ordered that within 30 days of the effective date of this Order, Respondent AR-ME Building & Design LLC shall provide the Registrar with sufficient written proof of payment by certified funds, in the amount of $3,400.00 to J M C Design & Excavation Inc. FURTHER IT IS RECOMMENDED it be ordered that if sufficient written proof of of payment by certified funds, in the amount of $3,400.00 to J M C Design & Excavation Inc. is not provided to the Registrar within 30 days of the effective date of this Order, then AR-ME Building & Design LLC, ROC License: ROC 295732 shall automatically be revoked. 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, April 19, 2019.

/s/Randolph D. Wolfson Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director Registrar of Contractors

----------------------- [1] Administrative Judicial Notice is taken of the entire of the Registrar’s electronic and physical records in this case and of the Registrar’s Public Access Website... [2] Agency Record, page 22 [3] See, Proposal and Contract, Agency Record, Pages 28-32 [4] See January 16, 2018 “Invoice,” Agency Record, pages 26 and 27...

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