2019A-03776-NPC-ROCFINACT.pdf

2019A-03776-NPC-ROC · Registrar of Contractors · 2020-05-06

REGISTRAR OF CONTRACTORS OF THE STATE OF ARIZONA

Home Center Supply LLC, Case No. 2019-03776 COMPLAINANT, Docket No. 2019A-03776-NPC-ROC v. Diamond T Consulting Inc, FINAL ADMINISTRATIVE License No. ROC 214315, DECISION AND ORDER RESPONDENT.

Under A.R.S. § 41-1092.08(B), the Registrar may review and accept, modify, or reject an administrative law judge’s written decision. If the Registrar modifies or rejects that decision, then the Registrar must provide written justification setting forth the reasons for the modification or rejection of each finding of fact or conclusion of law. REGISTRAR’S ACCEPTANCE In this case, a hearing was held, and the administrative law judge issued a written decision. See Administrative Law Judge Decision, attached. The Registrar reviewed that decision and accepts it. CONCLUSION AND ORDER Because the Registrar has accepted the administrative law judge’s decision, that decision is the final administrative decision in this case and becomes effective on June 3, 2020. Dated April 24, 2020. By: /s/ Joseph Citelli Joseph Citelli Chief Counsel Chief of Legal Department and Recovery Fund Arizona Registrar of Contractors

of 2 REGISTRAR OF CONTRACTORS 1700 W. Washington St.– Ste. 105 – Phoenix, AZ 85007-2812 Telephone (602)542-1525 Toll Free (877)692-9762 Lg131 8/19 Copy mailed via USPS First Class mail April 24, 2020 to: Respondent Diamond T Consulting Inc 604 W Frontier St Payson, AZ 85541

Complainant Home Center Supply LLC PO Box 368 Heber, AZ 85928

Complainant’s Attorney Jared R. Owens, Esq. 200 W Frontier St, Ste L Payson, AZ 85541 Copy sent electronically this same date to:

Office of Administrative Hearings Thomas Shedden, Administrative Law Judge Respondent at email address on record with the Registrar Complainant at email address on record with the Registrar Complainant’s Attorney at email address of record with Registrar

Case No. 2019-03776 / MB

of 2 REGISTRAR OF CONTRACTORS 1700 W. Washington St.– Ste. 105 – Phoenix, AZ 85007-2812 Telephone (602)542-1525 Toll Free (877)692-9762 Lg131 8/19 RECEIVED 4.14.2020 ROC LEGAL

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Home Center Supply LLC, No. 2019A-03776-NPC-ROC COMPLAINANT v. ADMINISTRATIVE LAW JUDGE Diamond T Consulting Inc., DECISION License No. ROC 214315, RESPONDENT

HEARING: November 22, 2019 and April 2, 2020

APPEARANCES: Mel Bowers and Laron Porter for Complainant; Justin Taylor for

Respondent

ADMINISTRATIVE LAW JUDGE: Thomas Shedden

FINDINGS OF FACT 1. On September 13, 2019, the Registrar of Contractors (“ROC”) issued a Notice of Hearing on Contested Case setting the above-captioned matter for hearing on October 17, 2019 at the Office of Administrative Hearings. 2. The Notice of Hearing shows that the hearing was being conducted on the

charges made in the complaint and citation that were served on Respondent Diamond T Consulting Inc. on August 23, 2019. 3. Through the citation and Notice of Hearing, ROC alleges that Respondent may have violated ARIZ. REV. STAT. section 32-1154(A)(10). 4. Respondent holds License No. 214315 issued by ROC. Justin James Taylor is Respondent’s qualifying party and an officer in the corporation. 5. Complainant is Home Center Supply LLC. 6. Complainant sold to Respondent material used by Respondent in connection with its license. 7. On July 25, 2019, Complainant filed with ROC a complaint against

Respondent alleging that Respondent owed Complainant $65,474.36.

RECEIVED 4.14.2020 ROC LEGAL

8. The matter was continued and the hearing was convened on November 22, 2019. At that time, Respondent acknowledged that it owed Complainant $58,481.08. 9. Mr. Taylor testified to the effect that Respondent was experiencing financial hardship related to issues that occurred on a number of jobs. 10. On November 22, 2019, the parties verbally agreed that Respondent would pay to Complainant $5000.00 per month beginning in January 2020. 11. Respondent did not make any payments to Complainant and, at Complainant’s request, the matter was reconvened on April 2, 2020. 12. On April 2, 2020, the parties confirmed that Respondent owes Complainant $58,481.08 for supplies Complainant sold to Respondent. 13. Mr. Taylor also confirmed that Respondent had not made any payments to Complainant despite agreeing to do so. Mr. Taylor testified to the effect that Respondent had intended to begin making payments, but because the winter had been wet, Respondent was unable to do so. 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).

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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 preponderance of the evidence shows that Respondent owes Complainant more than $750 for materials purchased in connection with Respondent’s operations as a contractor. Although Mr. Taylor testified as to Respondent’s financial status generally, Respondent did not assert that it had not been paid for any of the jobs for which Complainant supplied Respondent with material. 9. The preponderance of the evidence shows that Respondent has violated section 32-1154(A)(10). 10. Respondent’s license should be suspended until it pays to Complainant $58,481.08. RECOMMENDED ORDER IT IS RECOMMENDED that Diamond T Consulting, Inc.’s license number 214315 be suspended until the Registrar receives proof that it has paid to Home Center Supply, LLC $58,481.08.

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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 14, 2020.

/s/ Thomas Shedden Thomas Shedden Administrative Law Judge

Transmitted electronically to: Jeffrey Fleetham, Director Registrar of Contractors