ALJDEC decisions subject to certification as final

2020A-03060-NPC-ROC · Registrar of Contractors · 2020-10-14

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Desert Barricades LLC,

COMPLAINANT,

v.

Peace Of Mind Renovations LLC,

DBA: Arizonas Best Builder,

License No. ROC 310570,

RESPONDENT.

No. 2020A-03060-NPC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: September 24, 2020

APPEARANCES: Frederick E. Gomez appeared on behalf of Complainant Desert Barricades, LLC (Desert Barricades). Celeschito Sapalo appeared on behalf of Respondent Peace of Mind Renovations, LLC (Peace of Mind).

ADMINISTRATIVE LAW JUDGE: Velva Moses-Thompson

_____________________________________________________________________

FINDINGS OF FACT

1. On August 24, 2020, the Registrar of Contractors (Registrar) issued a

Notice of Hearing setting the above-captioned matter for hearing at 1:00 p.m. on September 24, 2020, at the Office of Administrative Hearings (OAH) in Phoenix, Arizona.

2. Peace of Mind holds license number 310570 issued by the Registrar.

3. Peace of Mind’s qualifying party is Celeschito Sapalo.

4. In June of 2019, Desert Barricades and Peace of Mind entered into an

an agreement wherein Desert Barricades agreed to provide barricades and a barricade plan for a construction site located at 4275 N. Stone Avenue, Tuscon, AZ 85705 (project).

5. Desert Barricades provided barricades and a barricade plan to Peace of Mind.

6. In or about June of 2020, the Registrar received a complaint from Desert

Barricades alleging that Peace of Mind failed to pay it $2,264.12 for services and material provided to Peace of Mind.

7. On July 21, 2020, the Registrar issued a Citation against Peace of Mind’s

license alleging that Peace of Mind may have violated Ariz. Rev. Stat. section

32-1154(A)(10).

8. Peace of Mind filed a timely answer to the Citation.

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

10. A hearing was held on September 24, 2020.

11. At hearing, Frederick E. Gomez testified on behalf of Desert Barricades. Mr. Sapalo testified on behalf of Peace of Mind.

12. Mr. Gomez stated that he assumed that Mr. Sapalo came into the office of Desert Barricades on June 26, 2019 and picked up traffic control equipment for the project. Mr. Gomez made the assumption based on a signed order form and credit card authorization dated June 26, 2019. Mr. Gomez explained that Mr. Sapalo requested traffic control equipment and a barricade plan for his construction project. Mr. Gomez explained that Mr. Sapalo completed an order form and a credit card charge form.

Mr. Gomez testified that Mr. Sapalo made additional requests for services. Mr. Gomez stated that Desert Barricades finished the project on August 2, 2019.

13. Mr. Gomez stated when Desert Barricades attempted to charge the payment on the credit card provided by Mr. Sapalo, the payment was declined.

In May of 2020, Mr. Gomez issued an invoice totaling $2,264.12 to Peace of Mind.

14. According to Desert Barricades’s May 2020 invoice, Peace of Mind owed Desert Barricades $55 for delivery order 50505.

15. Mr. Gomez stated that Mr. Sapalo agreed to several delivery orders from about July of 2019. See Exhibit A, pgs. 11 – 27. However, the delivery orders did not provide prices for items ordered. Mr. Gomez stated that Desert Barricades delivered all of the items listed in the delivery orders at the request of Mr. Sapalo. Mr. Gomez testified to the effect that Desert Barricades would not provide services or items if it had not been requested by Mr. Sapalo or Peace of Mind.

16. Mr. Sapalo testified Peace of Mind requested that Desert Barricades provide barricades and a barricade plan to Peace of Mind. However, Mr. Sapalo stated that he never came into Desert Barricades’s office. Mr. Sapalo stated that the items that it rented from Desert Barricades were delivered to Peace of Mind. Mr. Sapalo stated that Peace of Mind was never provided with a written contract. Mr. Sapalo agreed that he completed on order from and credit card authorization for the work. However,

Mr. Sapalo disputed that he owed Desert Barricades $2,264.12, and that it authorized and signed the all of the delivery orders in Exhibit A pages 11 – 27. Mr. Sapalo stated that he signed delivery order 50505, however, Mr. Sapalo stated that any other delivery orders with his purported signature were forged. Mr. Sapalo also stated that he did not authorize any orders that were not signed. Mr. Sapalo denied calling Desert Barricades for additional services. Mr. Sapalo explained that Desert Barricades never provided a written contract for the services requested by Peace of Mind.

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. Desert Barricades failed to establish that Peace of Mind owed it $2,264.12 in connection with Peace of Mind’s contractor’s license. Desert Barricades provided no evidence that Peace of Mind agreed to the prices that it charged Peace of Mind in an invoice a year after services were purportedly provided. Peace of Mind did not dispute that it authorized delivery order 50505. However, even if Peace of Mind had agreed to the prices charged in the invoice for delivery order 50505, Peace of Mind did not violate Ariz. Rev. Stat section 32-1154(A)(10) because the amount owed would be less than $750.

11. The preponderance of the evidence does not show that Respondent violated Ariz. Rev. Stat section 32-1154(A)(10) as alleged.

ORDER

IT IS ORDERED that the Citation and Complaint in Case No. 2020A-03060 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.

Done this day, October 14, 2020.

/s/ Velva Moses-Thompson

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors