ALJDEC decisions subject to certification as final

2019A-05696-NPC-ROC · Registrar of Contractors · 2020-04-24

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Premier Land Design LLC,

COMPLAINANT

Arizona Powell Company LLC,

DBA: Arizona Powell Company,

License No. ROC 310578,

RESPONDENT

No. 2019A-05696-NPC-ROC

ADMINISTRATIVE LAW JUDGE

DECISION

HEARING: April 13, 2020

APPEARANCES: Charles Snyder for Complainant; Trent Powell for Respondent

ADMINISTRATIVE LAW JUDGE: Thomas Shedden

FINDINGS OF FACT

On March 12, 2020, the Registrar of Contractors (“ROC”) issued a Notice of Hearing on Contested Case setting the above-captioned matter for hearing on April 13, 2020 at the Office of Administrative Hearings.

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 Arizona Powell Company LLC.

Through the Notice of Hearing, ROC alleges that Respondent may have violated Ariz. Rev. Stat. section 32-1154(A)(10).

Respondent holds License No. 310578 issued by ROC. Trent Powell is Respondent’s owner.

Complainant is Premier Land Design LLC.

Respondent hired Complainant to perform work at a construction project. The contract price was $46,387.

Respondent has paid to Complainant $44,887.

On November 14, 2019, Complainant filed with ROC a complaint against Respondent alleging that Respondent owes Complainant $5400.

Complainant’s managing member, Charles Snyder, testified that Respondent owes Complainant $1500 for the balance due on the original contract, $1400 because the parties agreed that Complainant would install a second vacuum breaker, and $2500 because Complainant was required by City of Mesa to take out additional insurance.

Mr. Powell testified to the effect that Complainant agreed to a $1500 price reduction from the original contract price in exchange for delivering a lesser amount of granite to the site.

The parties’ contract calls for Complainant to install 350 tons of granite. Respondent’s exhibit C is part of an email exchange between the parties regarding possible cost savings in which Mr. Snyder wrote that the could reduce the amount of granite by fifty tons for $1500. Exhibit D is an exchange of text messages in which Mr. Snyder notes that Complainant has 250 to 300 tons of granite coming to the site.

Mr. Powell acknowledged that Respondent and Complainant agreed to have a second vacuum breaker installed, but he did not agree that there was to be an additional cost to Respondent for that work.

Mr. Powell did not agree that Respondent was responsible for Complainant’s additional insurance costs.

Complainant did not produce any change orders or other documentation showing that Respondent had agreed to pay to Complainant $1400 for the vacuum breaker or $2500 for the cost of insurance. Complainant did not present any testimony or other evidence to show that based on the terms of the original contract Respondent was responsible to pay Complainant for the additional cost of Complainant’s insurance.

CONCLUSIONS OF LAW

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.

“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).

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).

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.").

“Statutes shall be liberally construed to effect their objects and to promote justice.” Ariz. Rev. Stat. § 1-211(B).

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).

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).

Respondent presented sufficient evidence to show that the parties agreed to a $1500 reduction to the original contract price in exchange for Complainant installing less granite at the site. Although Respondent acknowledged that the parties agreed to have Complainant install a second vacuum breaker at the site, Complainant did not prove that the parties agreed to a $1400 cost for that work. Complainant did not prove that Respondent was responsible to pay Complainant for the insurance Complainant was required to obtain.

Consequently, it has not been shown by a preponderance of the evidence that Respondent has violated section 32-1154(A)(10) and this matter should be dismissed.

RECOMMENDED ORDER

IT IS ORDERED that case number 2019-05696 is dismissed.

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.

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-137160-45720000Done this day, April 24, 2020.

/s/ Thomas Shedden

Thomas Shedden

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors

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-137160-45720000