ALJDEC decisions subject to certification as final

2020A-00913-NPC-ROC · Registrar of Contractors · 2020-08-06

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Clear Creek Tree Farm,

COMPLAINANT,

Supreme Landscape and Design Inc.,

License No. ROC 191502,

RESPONDENT.

No. 2020A-00913-NPC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: July 17, 2020

APPEARANCES: Phillip Burch appeared on behalf of Complainant Clear Creek Tree Farm. No one appeared on behalf of Respondent Supreme Landscape and Design, Inc.

ADMINISTRATIVE LAW JUDGE: Velva Moses-Thompson

_____________________________________________________________________

FINDINGS OF FACT

On June 16, 2020, the Registrar of Contractors (Registrar) issued a Notice of Hearing setting the above-captioned matter for hearing at 1:00 p.m. on July 17, 2020, at the Office of Administrative Hearings in Phoenix, Arizona.

No representative for Respondent Supreme Landscape and Design, Inc., (Supreme Landscape) appeared at the scheduled time and the matter was convened in its absence.

Supreme Landscape holds license number 191502, issued by the Registrar.

Phillip Burch is the owner of Complainant Clear Creek Tree Farm

(Clear Creek).

In November of 2019, Clear Creek entered into an agreement with Supreme Landscape wherein Clear Creek would provide plant material to two residences and a business. Clear Creek provided the plant material pursuant to the contract.

Clear Creek submitted three invoices to Supreme Landscape in November of 2019 totaling $8,670 for the tree material it provided to Supreme Landscape.

On or about April 22, 2020, the Registrar received a complaint filed by Clear Creek against Supreme Landscape. Clear Creek alleged that Supreme Landscape had failed to pay its bills in the total amount of $8,670.

On May 6, 2020, the Registrar issued a Citation against Supreme Landscape’s license. Through the Citation, the Registrar alleged that Supreme Landscape may have violated Ariz. Rev. Stat. section 32-1154(A)(10).

On or about May 21, 2020, Matthew S. Gonzalez filed an answer on behalf of Supreme Landscape with the Registrar. Mr. Gonzalez admitted that Supreme Landscape received tree material from Clear Creek. However, Mr. Gonzalez asserted that it was difficult to pay Clear Creek due to “extreme family health.”

At hearing, Mr. Burch provided credible testimony that Clear Creek delivered tree material to Supreme Landscape pursuant to their contract. However, Supreme Landscape never paid Clear Creek.

Clear Creek was owed $8,670 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. 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, Supreme Landscape and Design, Inc.’s license number 191502 number is suspended unless the Registrar receives and accepts written verification that Supreme Landscape and Design, Inc., has paid to Clear Creek Tree Farm, LLC $8,670 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, August 6, 2020.

/s/ Velva Moses-Thompson

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors

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-137160-45720000