ALJDEC decisions subject to certification as final

2019A-05700-NPC-ROC · Registrar of Contractors · 2020-03-05

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Redline Windows LLC,

COMPLAINANT

New Legacy Building and Design

Incorporated,

License No. ROC 199643,

RESPONDENT

No. 2019A-05700-NPC-ROC

ADMINISTRATIVE LAW JUDGE

DECISION

HEARING: February 20, 2020

APPEARANCES: Dan Van Ness for Complainant; no one appeared for Respondent

ADMINISTRATIVE LAW JUDGE: Thomas Shedden

FINDINGS OF FACT

On January 17, 2020, the Registrar of Contractors (“ROC”) issued a Notice of Hearing on Contested Case setting the above-captioned matter for hearing at 1:00 p.m. on February 20, 2020 at the Office of Administrative Hearings.

No representative for Respondent New Legacy Building and Design Incorporated appeared at the scheduled time, and the matter was convened in its absence at about 1:15 p.m.

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 on December 11, 2019.

Respondent holds License No. 199643 issued by ROC.

Complainant is Redline Windows LLC. Dan Van Ness is Complainant’s owner.

Through a contract dated July 18, 2018, Respondent hired Complainant to provide material and to perform work at a construction project on which Respondent was the general contractor. Complainant completed its work soon after the parties entered the contact.

Complainant submitted to Respondent an invoice for $3203 for its work. Respondent did not pay Complainant and on November 19, 2019, Complainant filed with ROC a non-payment complaint.

On December 11, 2019, ROC issued to Respondent a citation alleging that Respondent may have violated Ariz. Rev. Stat. section 32-1154(A)(10).

Mr. Van Ness testified that on February 19, 2020 (the night before the hearing) Respondent sent Complainant a check for the amount owing.

Mr. Van Ness provided credible testimony to the effect that the parties had communicated prior to February 19th, and despite Respondent’s promises to pay, it had failed to do so until the night before the hearing. In addition, Respondent had agreed to make payment with certified funds, but failed to do so.

Mr. Van Ness’s opinion was that Respondent paid the amount owing only because the hearing was scheduled to be conducted.

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).

The preponderance of the evidence shows that Respondent failed to pay Complainant $3203 for materials and services rendered in connection with Respondent’s operations as a contractor when that money was due, which is a violation of Ariz. Rev. Stat. section 32-1154(A)(10).

Because Respondent has violated section 32-1154(A)(10), ROC has authority to discipline Respondent’s license.

That Respondent would not, or could not, pay Complainant even after promising to do so, suggests that Respondent may be unscrupulous, financially irresponsible, or both. Respondent’s failure to appear at the hearing shows a lack of respect for Complainant’s time, the tribunal’s time, and ROC’s time and authority, and is a factor in aggravation.

Considering the above, Respondent’s license should be suspended for three days.

RECOMMENDED ORDER

IT IS ORDERED that on the effective date of the final Order in this matter, New Legacy Building and Design Incorporated’s license number 199643 is suspended for three days.

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, March 5, 2020.

/s/ Thomas Shedden

Thomas Shedden

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors

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-137160-45720000