ALJDEC decisions subject to certification as final

2019A-01279-NPC-ROC · Registrar of Contractors · 2019-07-07

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: June 18, 2019 APPEARANCES: Alfonso Gabrel-Martinez, Complainant; Justin Bighorn, Respondent and Qualifying Party ADMINISTRATIVE LAW JUDGE: Randolph D. Wolfson _____________________________________________________________________

FINDINGS OF FACT On April 24, 2019, the Registrar of Contractors (“ROC”) issued a Notice of Hearing setting the above-captioned matter for hearing at 1:00 p.m. June 18, 2019, at the Office of Administrative Hearings in Phoenix, Arizona. Respondent holds license numbers 308214 first issued by ROC on August 31, 2016.[1] Complainant is a licensed Arizona Contractor, license number 300160.[2] The parties herein have a long standing relationship wherein Complainant provided framing contracting services for projects that Respondent had subcontracted. On September 12, 2018 Complainant agreed with Respondent, for the sum of $7,000.00 [hereinafter, “Lot D5-6”],[3] to rough frame a house that Respondent had subcontracted with general contractor Patterson Enterprises, LLC [hereinafter, “Patterson”] to build for the Gila River Indian Commission. On September 28, 2018, Complainant agreed with Respondent to rough frame a house, for the sum of $7,000.00 [hereinafter, “Lot D5-15”][4] that Respondent had subcontracted with general contractor Patterson to build for the Gila River Indian Commission. As of the date of Complainant’s completion of the two projects, the total sum due and owing Complainant was, therefore, $14,000.00 There is no written contract between the Respondent and Complainant. There is no dispute that Complainant provided the framing services that the parties had agreed upon for both lots. There is no debate that neither the Respondent nor the Respondent’s Gila have raised any workmanship or other issues about Complainant’s work on the two projects. There is no dispute that Complainant fully and timely performed under the parties’ agreement and is entitled to payment. Complainant admits Respondent has paid Complainant the sum of $1,000.00. The balance due and owing is $13,000.00 As of the date of the hearing, Respondent had made no further payment for the balance due for the completed framing services provided by the Complainant. Respondent’s Qualifying Party, Justin Bighorn, testified that the contract Respondent held with Patterson for Gila was for a total of Three Million Seven Hundred Fifty Thousand Dollars ($3,750,000.00) and that Gila had held back $186,000.00 as retainage. But for the retainage amount, Mr. Bighorn has been paid for all services under the Gila contract. On March 13, 2019, Complainant House on the Rock Framing, LLC (“Complainant”) filed a Written Complaint against the Respondent with the Arizona Registrar of Contractors. On April 2, 2019, ROC issued a Citation alleging that Respondent may have violated Ariz. Rev. Stat. section 32-1154(A)(10). 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. 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."). 4. “Statutes shall be liberally construed to effect their objects and to promote justice.” Ariz. Rev. Stat. § 1-211(B). 5. 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). 6. 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.

7. The preponderance of the evidence shows that Respondent violated Ariz. Rev. Stat section 32-1154(A)(10) as alleged.

RECOMMENDED ORDER IT IS RECOMMEND that on the effective date of the final Order in this matter Bighorn Construction, LLC’s ROC license number 308214 is suspended two (2) days unless ROC receives and accepts written verification that Bighorn Construction, LLC has paid to House on the Rock Framing LLC the sum of $13,0000.00 in certified funds. FURTHER IT IS RECOMMENDED that if Respondent fails to pay the entire $13,000.00 on or before thirty days following the effective date of the Registrar’s Order, the Registrar revoke Respondent’s license, effective on such deadline date. 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, July 8, 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 entirety of the Registrar’s physical and electronic records in this matter, including, but not limited to information displayed on the Registrar’s Public Access Website [2] Ibid. [3] Agency Record, page 88. [4] Agency Record, page 88.

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