ALJDEC decisions subject to certification as final

2020A-05223-NPC-ROC · Registrar of Contractors · 2021-02-24

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Northstar Communications, Inc.,

COMPLAINANT,

v.

Arizona Traffic Signal, Inc.,

License No. 236945,

RESPONDENT.

No. 2020A-05223-NPC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: February 18, 2021

APPEARANCES: Cody Nelson appeared on behalf of Complainant Northstar Communications, Inc. No one appeared on behalf of Respondent Arizona Traffic Signal, Inc.

ADMINISTRATIVE LAW JUDGE: Velva Moses-Thompson

_____________________________________________________________________

FINDINGS OF FACT

1. On January 19, 2021, the Arizona Registrar of Contractors (Registrar)

issued a Notice of Hearing setting the above-captioned matter for hearing at 9:00 a.m. on February 18, 2021, at the Office of Administrative Hearings (OAH) in Phoenix, Arizona.

2. No representative for Arizona Traffic Signal, Inc. (Arizona Traffic Signal or

Respondent) appeared at the scheduled time and the matter was convened in its absence.

3. Arizona Traffic Signal holds license number 236945 issued by the Registrar.

4. In or about February of 2020, Arizona Traffic Signal and Sunland Asphalt entered into an agreement wherein Arizona Traffic Signal would provide labor and materials to Sunland Asphalt in connection with the construction of Interstate 10 & Fairway Improvements (the project).

5. In March of 2020, Complainant Northstar Communications, Inc. (Northstar) and Arizona Traffic Signal entered into an agreement wherein Northstar would provide labor and materials for Arizona Traffic Signal related to the traffic lights at the project. See the Registrar’s administrative record, pg. 2. Brooke Streech signed the agreement on behalf of Arizona Traffic Signal. See id.

6. Northstar performed construction work pursuant to the agreement.

7. On or about April 1, 2020, Northstar issued an invoice to Arizona Traffic Signal in the amount of $66,733.03 for the demolition and haul off of blisters in connection with the project. See Exhibit D.

8. On or about April 1, 2020, Christopher Plaisted, Arizona Traffic Signal’s project manager, approved the invoice. See the Registrar’s administrative record, pgs. 8-9.

9. Arizona Traffic Signal failed to pay the invoice.

10. On July 16, 2020, William Standish of Arizona Traffic Signal notified

Mr. Nelson that Arizona Traffic Signal intended to pay for the blister work. See Exhibit C. Ms. Streech was copied on the e-mail.

11. On or about November 2, 2020, the Registrar received a complaint from Northstar alleging that Arizona Traffic Signal failed to pay it $66,733.03 for labor and materials provided to Arizona Traffic Signal in connection with the project.

See Exhibit A.

12. On November 30, 2020, the Registrar issued a Citation against Arizona Traffic Signal’s license alleging that Arizona Traffic Signal may have violated Ariz. Rev. Stat. section 32-1154(A)(10).

13. Arizona Traffic Signal filed a timely answer to the Citation.

14. The matter was referred to the OAH for an evidentiary hearing.

15. A hearing was held on February 18, 2021.

16. At hearing, Mr. Nelson testified on behalf of Northstar. Mr. Nelson explained that Arizona Traffic Signal failed to pay it $66,733.03 for labor and materials provided to Arizona Traffic Signal in connection with the blister work performed for the project.

17. Administrative notice is taken of Respondent’s license history. According to the Registrar’s website on February 24, 2021, Respondent’s license was issued on August 19, 2007, and is suspended. Such prior License record history shows that four complaints resulted in discipline against Respondent’s license and that there are currently four open complaints against Respondent’s license. Such prior License record history also shows that two complaints were resolved or settled by Respondent or withdrawn by the complainant after the issuance of a corrective work order or formal citation.

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.

The suspended status of Arizona Traffic Signal’s license does not deprive

Complainant of its right to prosecute its complaint against Arizona Traffic Signal or 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. 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.

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

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.”

11. 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.

12. 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, Arizona Traffic Signal, Inc.’s license number 236945 is suspended unless the Registrar receives and accepts written verification that Arizona Traffic Signal, Inc., has paid to Northstar Communications, Inc. $66,733.03 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, February 24, 2021.

/s/ Velva Moses-Thompson

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors