FINACT2019A-00637-ROC.pdf

2019A-00637-ROC · Registrar of Contractors · 2019-06-13



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New ALJ Decision transmitted for ROC (2019A-00637-ROC) message

OAH Electronic Decision Transmission System <[email redacted]> Wed, May 29, 2019 at 1:12 PM To: [email redacted]

This is a message from the Arizona Office of Administrative Hearings to inform you that a decision has been transmitted for Registrar of Contractors. The details are as follows:

Decision type: ALJ Decision Matter ID: 2019A-00637-ROC Filed by: OAH Filed on: 5/29/2019 Due Date for Final Agency Action (if applicable): 7/3/2019

You may access this decision at https://portal.azoah.com/aljdec/documents/ROC/2019A-00637-ROC-ALJDecision-6279.pdf.

To view all available ALJ decisions, visit https://portal.azoah.com/aljdec/documents/ROC/. RECEIVED 5.29.2019 ROC LEGAL

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Sahuarita Auto, No. 2019A-00637-ROC COMPLAINANT, ADMINISTRATIVE LAW JUDGE -vs- DECISION Cano Structures LLC, ROC License: ROC 267965, 293180, RESPONDENT.

HEARING: May 08, 2019 at 8:30 AM. APPEARANCES: Neil Johnson appeared on behalf of Sahuarita Auto (“Complainant”). Jay Cano appeared on behalf of Cano Structures LLC (“Respondent”). Esmedalda Johnson observed. ADMINISTRATIVE LAW JUDGE: Jenna Clark. _____________________________________________________________________ After review of the hearing record in this matter, the undersigned Administrative Law Judge makes the following Findings of Fact and Conclusions of Law, and issues this RECOMMENDED ORDER to the Director of the Arizona Registrar of Contractors (“Registrar”). FINDINGS OF FACT BACKGROUND AND PROCEDURE 1. Pursuant to ARIZ. ADMIN. CODE R4-9-117, Administrative Notice is taken of Respondent’s license files as shown on the Registrar’s public website May 08, 2019. 2. On November 10, 2010, the Registrar issued License No. 267965 for specialty dual CR-57 wrecking contracting license to Respondent.1 The license is renewed through November 30, 2020. There is are no prior disciplinary actions listed for License No. 267965, but there are two open cases listed – one of which is presumably Complainant’s. License No. 267965 is active and has an active $29,250.00 surety bond issued by Old Republic Surety Company effective November 14, 2014.

Office of Administrative Hearings 1740 West Adams Street, Lower Level Phoenix, Arizona 85007 (602) 542-9826 RECEIVED 5.29.2019 ROC LEGAL

3. On June 30, 2014, the Registrar issued License No. 293180 for general dual KE contracting, as restricted by the Registrar to epoxy overlays and waterproofing only.2 The license is renewed through June 30, 2020. There is are no prior disciplinary

actions listed for License No. 293180 and the license does not have any open cases.

License No. 293180 is active and has an active $14,000.00 surety bond issued by Old

Republic General Insurance Corporation effective June 19, 2014.

4. Jay Ray Cano is listed as the Qualifying Party/Member on both licenses.

The address of record for both licenses is 18208 W North Cr Waddell, AZ 85355-4256.

5. On February 07, 2019, the Registrar received a complaint from

Complainant alleging nonpayment of services against Respondent.3 The Registrar

designated it Complaint No. 2019-00637 and assigned the case to Tedi White in their

legal department.

6. On February 12, 2019, the Registrar issued a letter to Respondent

providing notice of Complainant’s complaint, and informed Respondent that it was free

to raise any affirmative defense(s) or provide additional information by February 20,

2019.4

7. On February 19, 2019, the Registrar received Respondent’s reply5 to Complaint No. 2019-00637 which states in pertinent part: I have received and reviewed the complaint filed by Mr. Eric Barr. Interestingly, he filed this complaint as a business (Sahuarita Auto) but payments are required to be made to him personally and he refused to provide a tax ID when asked in order to send a 1099 to him. Regardless, the issue is I requested an invoice (or “tally” as he calls it) of what was owed and he never provided any documentation until this complaint. Due to the fact I was not personally on the job site on a daily basis, I needed something from him in order to issue proper payment. Instead he demanded payment be deposited into his account or he would file this action. (Emphasis in original.)

See https://roc.az.gov/contractor-search?Id=a0Yt000000ACHguEAH. See https://roc.az.gov/contractor-search?Id=a0Yt000000ACPH8EAP. See Registrar’s Hearing File at page 19. See Registrar’s Hearing File at page 18. 5 See Registrar’s Hearing File at pages 13-14. RECEIVED 5.29.2019 ROC LEGAL

8. On February 22, 2019, the Registrar issued a CITATION to Respondent for an alleged violation of ARIZ. REV. STAT § 32-1154(A)(10).6 Respondent was notified that a failure to provide an ANSWER by March 11, 2019, would be deemed as an admission of Respondent’s commission of the act(s) charged in the underlying complaint, pursuant to ARIZ. REV. STAT § 32-1155(B), and could result in discipline against Respondent’s license including suspension or revocation. 9. On March 15, 2019, the Registrar issued a NOTICE OF HEARING setting the above-captioned matter for hearing at 1:00 p.m. on May 08, 2019, at the Office of Administrative Hearings, an independent state agency. The NOTICE OF HEARING shows that the hearing was being conducted on the charges made in the CITATION and COMPLAINT. HEARING EVIDENCE 10. Neil Johnson testified on behalf of Complainant. Jay Cano testified on behalf Respondent. Neither party submitted exhibits. The Registrar’s electronic hearing file and NOTICE OF HEARING were admitted into the evidentiary record. 11. The parties had a verbal contract agreement whereby Respondent was permitted to dump concrete materials at Complainant’s site between August 2017 and August 2018. Dumping rates were $25.00 per load through and until May 01, 2018, whereby they increased to $35.00 per load thereafter. Drivers were required to sign in each time they dumped a load at Complainant’s site. Specific payment arrangements were not included in the parties’ agreement. 12. Neither party kept a clear accounting or records of the dumps that occurred during the parties’ contract period.7 13. On numerous occasions Complainant contacted Respondent to inquire as to if and when Respondent would make payment(s) on their agreement. On at least one

See Registrar’s Hearing File at pages 6-11. 7 See Registrar’s Hearing File at pages 24-32. RECEIVED 5.29.2019 ROC LEGAL

occasion Respondent failed to remit monies as promised,8 causing a rift and further irregular communications between the parties. 14. During the relevant time period Complainant dumped ninety-one (91)

loads at the $25.00 rate and two hundred nineteen (219) loads at the $35.00 rate at

Complainant’s site.9 In total, Respondent made $9,940.00 worth of dumps at

Complainant’s site.10

15. On November 11, 2018, Respondent issued a check for $2,000.00 to

Complainant.11

16. On March 03, 2019, Respondent issued a check for $7,940.00 to

Complainant.

CONCLUSIONS OF LAW

1. This matter lies within the Registrar’s jurisdiction and has been properly

brought before the Office of Administrative Hearings for adjudication.12

2. 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.13 3. “A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.”14 A preponderance of the evidence is “[t]he 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.”15

8 See Registrar’s Hearing File at pages 33-35. See Registrar’s Hearing File at page 50. Id. Id. See ARIZ. REV. STAT. §§ 32-1101 et seq., 32-1154(A), and 41-1092 et seq. See ARIZ. ADMIN. CODE R2-19-119. MORRIS K. UDALL, ARIZONA LAW OF EVIDENCE § 5 (1960). 15 BLACK’S LAW DICTIONARY at page 1220 (8th ed. 1999). RECEIVED 5.29.2019 ROC LEGAL

4. The purpose of the Registrar’s licensing statutes is to protect the public from unscrupulous, unqualified, and financially irresponsible contractors.16 5. Statutes should be interpreted to provide a fair and sensible result.17

Statutes shall be liberally construed to affect their objects and to promote justice.18

6. ARIZ. REV. STAT. § 32-1154(A)(10) holds, in pertinent part, that 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, 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.”

7. The facts in this case are not in dispute.

8. Here, credible evidence in the record reflects that Respondent does not

owe Complainant an outstanding balance for loads dumped on Complainant’s site

between August 2017 and August 2018. The record further reflects that the parties did

not have a payment agreement for monies to be paid regarding this contract agreement. 9. Because Complainant failed to establish by a preponderance of the evidence that Respondent violated ARIZ. REV. STAT. § 32-1154(A)(10), Complainant has not established cause for the Registrar to suspend or revoke Respondent’s contractor’s license. 10. Considering the facts and circumstances of this matter, no disciplinary action shall be taken against Respondent’s license(s) by the Registrar as a result of this dispute. RECOMMENDED ORDER

See Aesthetic Property Maintenance v. Capital Indem. Corp., 183 Ariz. 74, 900 P. 2d 1210 (1995). See 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.”). 18 See ARIZ. REV. STAT. § 1-211(B). RECEIVED 5.29.2019 ROC LEGAL

Based on the foregoing, IT IS RECOMMENDED that Complainant’s complaint be dismissed.

Done this day, May 29, 2019.

/s/ Jenna Clark Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director Registrar of Contractors