ALJDEC decisions subject to certification as final

2020A-04891-NPC-ROC · Registrar of Contractors · 2021-02-08

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

B-Line Directional Drilling LLC,

COMPLAINANT

v.

Arizona Traffic Signal, Inc.,

License Number ROC 236945,

RESPONDENT

No. 2020A-04891-NPC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: January 20, 2021

APPEARANCES: Kris Stadeli appeared on behalf of Complainant B-Line Directional Drilling, LLC. No one appeared on behalf of Arizona Traffic Signal, Inc.

ADMINISTRATIVE LAW JUDGE: Kay Abramsohn

_____________________________________________________________________

FINDINGS OF FACT

1. Complainant has worked with Respondent periodically. Complainant’s drilling/boring work enables Respondent to install/work on traffic signals.

2. On September 17, 2019, Complainant invoiced Respondent $30,081.00 for work performed on September 16, 2019 in Gilbert, Arizona at Pecos and Lindsay Road for the Lindsay Road improvements. See Invoice #6698.

3. On February 14, 2020, Complainant invoiced Respondent $5,500.00 for work performed on February 13, 2020 in Gilbert, Arizona at Pecos and Lindsay Road for the Lindsay Road improvements. See Invoice #6940.

4. Respondent did not pay Complainant any amount on either invoice.

5. On or about October 14, 2020, the Arizona Registrar of Contractors (Registrar) received a complaint from Complainant alleging that Respondent had failed to pay for the work performed as specified on the two invoices.

6. On October 27, 2020, the Registrar issued a Citation against Respondent’s license for the alleged violation of Arizona Revised Statutes (A.R.S.) § 32-1154(A)(10). The Citation shows that if an Administrative Law Judge finds that the charge is valid, the Registrar may suspend or revoke Respondent’s license.

7. On November 11, 2020, Respondent filed its answer to the Citation, indicating that it lacked the capacity to pay and that it had not received sufficient monies to pay the past due amounts.

8. The matter was not resolved informally by the parties and was referred to the Office of Administrative Hearings for an evidentiary hearing.

9. On December 18, 2020, the Registrar issued a Notice of Hearing setting the matter for administrative hearing on January 20, 2021. The Notice of Hearing shows that the hearing was set to consider the charges made in the Citation and complaint.

10. A hearing was convened on January 20, 2021.

11. At the time of the hearing, no one appeared on behalf of Respondent. No one on behalf of Respondent contacted the Office of Administrative Hearings to request a continuance or that the time for the hearing be further delayed, or to present any evidence at the hearing on behalf of Respondent. The matter was conducted in Respondent’s absence.

12. Kris Stadeli explained that, while Respondent was not necessarily a fast payer, they typically had paid within 60 days in the past. Mr. Stadeli noted that, while Complainant’s invoices say Net 10, invoices are usually considered to be Net 30. However, in the case of these two invoices, Respondent did not pay.

13. Mr. Stadeli did contact Respondent in efforts to resolve the matter, however, it appeared to him that the Respondent, as a company, was “going downhill” and that they now appeared to be “unorganized” at job sites. Mr. Stadeli noted that, eventually, he was told that the owner had passed away.

14. Complainant sent the matter to a professional collections company which was able to contact personnel at Respondent but was unable to bring in any money from Respondent on the account for Complainant. Mr. Stadeli indicated that the collections company told him that it had three other accounts for collection against Respondent.

15. Administrative notice is taken of Respondent’s license history. According to the Registrar’s website on February 8, 2021, Respondent’s License No. 236945 was first issued on August 19, 2007, was renewed through August 31, 20201, but was suspended in a disciplinary action as of December 17, 2020. The Registrar’s website indicates 5 open cases and 5 closed cases (3 with discipline and 2 as resolved) against Respondent’s license.

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.

The suspended status of Respondent’s license does not deprive

Complainant of its right to prosecute its complaint against Respondent and does not prevent the Registrar from determining the merits of Complainant’s complaint. This matter lies within the Registrar’s jurisdiction.

“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.

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, Respondent’s License No. 236945 is revoked unless the Registrar receives and accepts written verification that Respondent Arizona Traffic System, Inc. has paid, in certified funds, the $35,581.00 owed to Complainant B-Line Directional Drilling, LLC.

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, February 8, 2021.

/s/ Kay A. Abramsohn

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors