ALJDEC decisions subject to certification as final

2019A-06026-NPC-ROC · Registrar of Contractors · 2020-03-24

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Van Marcke Trade Supply,

COMPLAINANT,

Chad Everett Head,

ROC License: ROC 254234

RESPONDENT.

No. 2019A-06026-NPC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: March 5, 2020

APPEARANCES: LaShownda Watkins appeared on behalf of Complainant Van Marcke Trade Supply. Respondent Chad Everett Head did not appear.

ADMINISTRATIVE LAW JUDGE: Velva Moses-Thompson

_____________________________________________________________________

FINDINGS OF FACT

On February 3, 2020, the Registrar of Contractors (Registrar) issued a Notice of Hearing setting the above-captioned matter for hearing at 9:00 a.m. on March 5, 2020, at the Office of Administrative Hearings in Phoenix, Arizona.

Respondent Chad Everett Head did not appear. No representative appeared for Mr. Head at the scheduled time and the matter was convened in his absence at about 9:20 a.m.

Mr. Head holds license number 254234 issued by the Registrar.

LaShownda Watkins is an employee of Complainant Van Marcke Trade Supply (Van Marcke).

From September of 2018 through November of 2018, Mr. Head ordered plumbing materials from Van Marcke.

Van Marcke provided the materials to Mr. Head.

On or about December 6, 2019, the Registrar received a complaint from Van Marcke alleging that Mr. Head failed to pay for materials supplied by Van Marcke.

On or about December 31, 2019, the Registrar issued a Citation alleging that Mr. Head may have violated Ariz. Rev. Stat. section 32-1154(A)(10).

Mr. Head filed a timely answer to the Citation.

The matter was referred to the Office of Administrative Hearing for an evidentiary hearing.

A hearing was held on March 5, 2020.

Ms. Watkins testified on behalf of Van Marcke. Ms. Watkins explained that Mr. Head failed to pay Van Marcke $2,495.04 for plumbing parts that he purchased from Van Marcke.

CONCLUSIONS OF 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 section 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. section 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. section 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).

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. Ariz. Rev. Stat section 32-1154(A)(10) includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license “[f]ailure by 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.”

9. Payment for “[s]ervices rendered in connection with the licensee’s operations as a contractor” does not include interest, finance charges, lien charges, or other charges that are based solely on contract terms.

10. The preponderance of the evidence shows that Respondent violated Ariz. Rev. Stat section 32-1154(A)(10) as alleged.

ORDER

IT IS ORDERED that on the effective date of the final Order in this matter, Chad Everett Head’s ROC License number ROC 254234 is revoked unless the Registrar receives and accepts written verification that Chad Everett Head has paid to Van Marcke Trade Supply $2,495.04 in certified funds.

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 24, 2020.

/s/ Velva Moses-Thompson

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors

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