ALJDEC decisions subject to certification as final

2019A-02150-NPC-ROC · Registrar of Contractors · 2019-09-23

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: September 19, 2019 APPEARANCES: Lynne Welton for Complainant; no one appeared for Respondent ADMINISTRATIVE LAW JUDGE: Thomas Shedden FINDINGS OF FACT 1. On June 18, 2019, the Registrar of Contractors (“ROC”) issued a Notice of Hearing setting the above-captioned matter for hearing on July 19, 2019 at the Office of Administrative Hearings. The matter was continued and the hearing was rescheduled for 9:00 a.m. on September 19, 2019. 2. The Notice of Hearing shows that the hearing was being conducted on the charges made in the Citation and complaint. 3. Complainant is Ross Aerial Equipment LLC. 4. Respondent, Stealth Demolition Inc., holds license number 228017 issued by ROC. David John Carras is Respondent’s qualifying party. 5. No representative for Respondent appeared at 9:00 a.m. on September 19, 2019, and the matter was convened in its absence at about 9:17 a.m. 6. On April 25, 2019, Complainant filed with ROC a complaint against Respondent alleging that Respondent had failed to pay Complainant $15,391.42 for equipment Complainant rented to Respondent for Respondent’s use in its operations as a contractor. 7. The parties had entered into an agreement in which Respondent was to pay to Complainant $500 per week until its debt was cleared, which is why the matter was continued. Respondent made some weekly payments to Complainant, but had stopped making payments before it had paid the entire amount owed to Complainant. 8. As of the hearing date, Respondent owed to Complainant $12,506.50, of which $11,138.78 was for the rental fees and $1367.72 was for interest on Respondent’s outstanding debt. 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 ….” Ariz. Rev. Stat. § 32-1154(A)(10). 8. The preponderance of the evidence to show that Respondent has violated section 32-1154(A)(10). Consequently, ROC has authority to discipline Respondent’s license. 9. Respondent’s failure to appear at the hearing is a factor in aggravation. RECOMMENDED ORDER IT IS RECOMMENDED that on the effective date of the final order in this matter Stealth Demolition Inc.’s license number 228017 be suspended until the Registrar receives proof that Stealth Demolition Inc. has paid to Complainant $11,138.78. 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, September 23, 2019.

/s/ Thomas Shedden Thomas Shedden Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director Registrar of Contractors -----------------------

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