ALJDEC decisions subject to certification as final
2020A-00487-NPC-ROC · Registrar of Contractors · 2020-06-02
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
B & W Fire Security Systems LLC,
COMPLAINANT,
v.
Elk Ridge Development LLC,
License No. 273333,
RESPONDENT.
No. 2020A-00487-NPC-ROC
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: May 13, 2020
APPEARANCES: Joe Wilson appeared on behalf of Complainant B & W Fire Security Systems LLC (B & W Fire). Kevin Hunsucker appeared on behalf of Respondent Elk Ridge Development, LLC (Elk Ridge).
ADMINISTRATIVE LAW JUDGE: Velva Moses-Thompson
_____________________________________________________________________
Respondent Elk Ridge Development, LLC (Elk Ridge) holds license number 273333 issued by the Registrar.
Kevin Hunsucker is the qualifying part for Elk Ridge.
Elk Ridge requested that B & W bid on a fire sprinkler installation project to be performed at the Mitchell and Watkins residences. Elk Ridge also requested bids and designs for the project.
3. In June and September of 2018, B & W prepared proposals to design, furnish, and install a wet pipe automatic fire sprinkler system at the Mitchell and Watkins residences.
4. On or about June 7, 2018, B & W issued an invoice to Elk Ridge for the designs for the project at the Mitchell residence in the amount of $697.
5. On or about September 27, 2018, B & W issued an invoice to Elk Ride for designs for the Watkins residence in the amount of $697.
6. B & W obtained fire sprinkler permits for the projects from Central Arizona Fire and Medical Authority for $150 each.
7. Elk Ridge did not pay B & W for the designs.
8. On or about January 29, 2020, B & W filed a complaint with the Arizona Registrar of Contractors (Registrar) for alleging that Elk Ridge failed to pay for services provided in connection with Elk Ridge’s construction business when payment became due.
9. On November 8, 2016, the Registrar issued a Citation alleging that Gentry Estates may have violated Ariz. Rev. Stat. section 32-1154(A)(10).
10. The matter was referred to the Office of Administrative Hearings for an evidentiary hearing.
11. A hearing was held on May 13, 2020.
12. At hearing, Mr. Wilson contended that an Elk Ridge employee verbally requested proposals and designs for the Williams and Mitchell residences.
13. Mr. Hunsucker explained that he did not believe that his employee submitted such a verbal request. Mr. Hunsucker explained that he would not request designs for a project that if he has not yet been awarded a bid. Mr. Hunsucker contended that Elk Ridge did not request proposals and designs for the Mitchell and Watkins residences, only bids.
14. B & W was owed $1,794 at the time that the complaint was filed.
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 § 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).
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. A.R.S. § 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,
Elk Ridge Development LLC’s License number 273333 number is revoked unless the Registrar receives and accepts written verification that Elk Ridge Development, LLC
has paid to B & W Fire Security Systems LLC, $1,794 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.
Done this day, June 2, 2020.
/s/ Velva Moses-Thompson
Administrative Law Judge
Transmitted electronically to:
Jeffrey Fleetham, Director
Registrar of Contractors