ALJDEC decisions subject to certification as final

2019A-02149-NPC-ROC · Registrar of Contractors · 2019-11-01

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: July 26, 2019 and October 16, 2019 APPEARANCES: Lynne Welton appeared on behalf of Complainant Ross Aerial Equipment, LLC (Ross Aerial) at the hearing on July 26, 2019. Robert L. McKibben appeared on behalf of Respondent Tri Signal Integration, Inc. (Tri Signal) at the hearing on July 26, 2019. Lynne Welton appeared on behalf of Ross Aerial at the hearing on October 16, 2019. No one appeared on behalf of Tri Signal at the hearing on October 16, 2019. ADMINISTRATIVE LAW JUDGE: Velva Moses-Thompson _____________________________________________________________________ FINDINGS OF FACT 1. Ross Aerial agreed to rent equipment to Tri Signal for a construction project in 2018. 2. On April 25, 2019, the Arizona Registrar of Contractors (Registrar) received a complaint from Ross Aerial alleging that Tri Signal failed to pay $6,477.86 for equipment that was leased to Tri Signal. 3. On May 17, 2019, the Registrar issued a Citation against Tri Signal’s license. Through the Citation, the Registrar alleged that Tri Signal had violated Ariz. Rev. Stat. § 32-1154(A)(10).

4. Tri Signal filed a timely appeal to the Citation. 5. The matter was referred to the Office of Administrative Hearings for an evidentiary hearing. 6. At the July 26, 2019 hearing, the parties requested additional time to resolve their dispute and the matter was set for a status update. 7. On or about September 11, 2019, Ross Aerial informed the tribunal that it had resolved its dispute with Tri Signal. Ross Aerial requested that the matter be reset for hearing. 8. At the October 16, 2019 hearing, Ms. Welton explained that Tri Signal owed Ross Aerial $6,477.86 for equipment that it leased to Tri Signal. Ms. Welton also testified that Mr. McKibben told her that the hearing was not important because Tri Signal does not conduct business in Arizona. 9. Tri Signal did not appear at the hearing on October 16, 2019 and did not filed a request to appear telephonically.[1] Although the start of the duly noticed hearing was delayed approximately minutes to allow Tri Signal additional travel time, Tri Signal did not appear, through an authorized member, employee, or attorney, and did not contact OAH to request that the start of the hearing be further delayed. Consequently, Signal did not present any evidence to defend its license. 10. Administrative notice is taken of Respondent’s prior License record on November 1, 2019. Such prior License record reflects that Respondent’s License No. 218052 was first issued on March 23, 2006, and is active. Such prior License record also reflects that there is one open complaint against Respondent’s license. CONCLUSIONS OF LAW 1. This matter lies within the Registrar’s jurisdiction.[2] 2. 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. 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. 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 preponderance of the evidence shows that Tri Signal violated Ariz. Rev. Stat section 32-1154(A)(10) by failing to pay Ross Aerial $6,477.86 for equipment supplied in connection with Tri Signal’s contracting business. 9. Based upon Respondent’s violation of the provisions of Ariz. Rev. Stat section 32-1154(A)(10), grounds exist to impose discipline against Tri-Signal’s license. RECOMMENDed order Based on the foregoing, it is recommended that the Registrar suspend Respondent’s License No: 218052 issued by the Registrar until Respondent has provided to the Registrar, and the Registrar has accepted, documents that establish that Respondent paid Complainant $6,477.86 in certified funds. It is further recommended that if the Registrar receives and accepts Respondent’s evidence that it has paid Complainant $6,477.86 in certified funds before the effective date of the Registrar’s Order, the Registrar may close the Complaint in this matter. 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, November 1, 2019.

/s/ Velva Moses-Thompson Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director Registrar of Contractors

----------------------- [1] Respondent filed a request to continue the hearing one day before the date of the hearing. Respondent was expected to appear at the hearing and failed to appear. The request to continue was denied on the day of the hearing. [2] See A.R.S. §§ 32-1151 to 32-1169.

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