ALJDEC decisions subject to certification as final

2019A-00327-ROC · Registrar of Contractors · 2019-04-25

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: April 24, 2019 APPEARANCES: No one appeared for Complainant; John McBroom for Respondent ADMINISTRATIVE LAW JUDGE: Thomas Shedden

FINDINGS OF FACT 1. On February 25, 2019, the Registrar of Contractors (“ROC”) issued a Notice of Hearing setting the above-captioned matter for hearing at 1:00 p.m. on April 24, 2019 at the Office of Administrative Hearings. 2. Complainant is Quality Overhead Door Incorporated. 3. No representative for Complainant appeared at the scheduled time and the matter was convened in its absence at about 1:18 p.m. 4. Respondent, McBroom Custom Builders LLC, holds License No. 194020 issued by ROC. John McBroom is Respondent’s qualifying party. 5. The Notice of Hearing shows that the hearing was being conducted on the charges made in the Citation and complaint. The Notice of Hearing does not provide the date the Citation was issued or when the complaint was issued or filed. The Citation is not in the administrative record provided by ROC, nor was it introduced as an exhibit during the hearing. 6. Through a complaint filed with ROC on January 18, 2019, Complainant alleged that Respondent had failed to pay to Complainant $1435.00. 7. Mr. McBroom testified that on January 7, 2019, he had received from Complainant a text showing that Respondent had an outstanding invoice. 8. On January 21, 2019, Respondent wrote a check to Complainant for $1435.00, which cleared on January 28, 2019. 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 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). 8. The evidence presented shows that Respondent paid Complainant the $1435.00 that was due within two weeks of receiving notice that the invoice was outstanding. 9. The preponderance of the evidence does not show that Respondent has violated section 32-1154(A)(10). RECOMMENDED ORDER IT IS ORDERED that that on the effective date of the final Order in this matter, case number 2019-00327 is dismissed.

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 25, 2019.

/s/ Thomas Shedden Thomas Shedden Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director Registrar of Contractors

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