ALJDEC decisions subject to certification as final

2020A-04764-CHC-ROC · Registrar of Contractors · 2021-01-29

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Michael J Beam,

COMPLAINANT

Paddock Pools LLC,

License No. ROC 328832,

RESPONDENT

No. 2020A-04764-CHC-ROC

ADMINISTRATIVE LAW JUDGE

DECISION

HEARING: January 21, 2021

APPEARANCES: Michael J. Beam on his own behalf; Brian Umberger and Tina Thorpe for Respondent

ADMINISTRATIVE LAW JUDGE: Thomas Shedden

FINDINGS OF FACT

On December 18, 2020, the Registrar of Contractors (“ROC”) issued a Notice of Hearing setting the above-captioned matter for hearing on January 21, 2021 at the Office of Administrative Hearings.

The Notice of Hearing shows that Respondent Paddock Pools LLC is alleged to have violated Ariz. Rev. Stat. section 32-1154(A)(1).

Respondent holds license No. 328832 issued by ROC. Tina Thorpe is Respondent’s putative Qualifying Party.

Complainant is Michael J. Beam.

Respondent entered a contract with Mr. Beam in which Respondent was to provide consulting services to Mr. Beam as other contractors built a swimming pool for Mr. Beam.

Respondent’s license is a provisional license that was issued on May 11, 2020, pursuant to Executive Order 2020-17 - Continuity of Work.

Through a letter dated July 27, 2020, ROC informed Respondent that its provisional license was suspended because Respondent’s qualifying party had failed to pass the required examinations by the provided testing date. ROC’s letter informed Respondent that it could no longer provide contracting services as of the date of the letter.

ROC’s letter of July 27, 2020, informed Respondent that the suspension of its license would be lifted if ROC received notification that the qualifying party had passed the required examinations, provided that those examinations were taken within provisional license’s six-month period.

On or about October 6, 2020, Mr. Beam filed with ROC a complaint against Respondent alleging that Respondent had abandoned the project.

Mr. Beam’s complaint shows that he had paid to Respondent $5500, which was the contract amount. His complaint also shows that he paid Respondent $3500 as its fee for its help and additional $5000 for equipment, some of which he had not received.

At the hearing, Mr. Beam clarified that the contract for consulting services was for a total of $3500, which he had paid, and that he made a payment of $5500 for equipment and $3100 for a waterfall and coping, but he did not consider those two payments to be part of the contract at issue.

ROC investigator Wes Ellington testified to the effect that after ROC received Mr. Beam’s complaint, Mr. Beam informed ROC that he did not want to wait for the process to play out, but rather, he intended to move forward with construction of the pool. According to Mr. Ellington, typically ROC would dismiss a complaint under these circumstances, but because there were several other complaints open against Respondent, the matter was referred to ROC’s legal department.

Mr. Ellington did not conduct any inspections of the jobsite.

ROC issued to Respondent a Citation dated November 2, 2020 through which it alleges that Respondent may have violated Ariz. Rev. Stat. section 32-1154(A)(1).

Respondent filed with ROC an answer in which it provided that it had not abandoned the project without legal excuse because it was unable to perform after ROC suspended its license, which Respondent believes provides a legal excuse.

At the hearing, Respondent’s Brian Umberger testified that after Respondent received its provisional license, Ms. Thorpe twice took and failed the licensing examination and in each case ROC told Respondent to keep selling pools and to reschedule the test. After Ms. Thorpe failed the test for a third time, ROC suspended Respondent’s license.

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 Administrative Law Judge may consider ROC’s administrative record. See Ariz. Admin. Code § R4-9-118.

Ariz. Rev. Stat. section 32-1154(A)(1) provides that a license holder may not abandon a contract or refuse to perform after submitting a bid on work without legal excuse for the abandonment or refusal.

It has not been shown by a preponderance of the evidence that Respondent violated section 32-1154(A)(1) because the fact that ROC suspended Respondent’s provisional license after its qualifying party failed the required examination provides a legal excuse for any abandonment or refusal to perform.

Consequently, this matter should be dismissed.

RECOMMENDED ORDER

IT IS ORDERED that case number 2020-04764 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.

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-137160-45720000Done this day, January 29, 2021.

/s/ Thomas Shedden

Thomas Shedden

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors

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-137160-45720000