ALJDEC decisions subject to certification as final

2020A-05328-NPC-ROC · Registrar of Contractors · 2021-04-01

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

DS & J Enterprises Inc,

DBA: Arizona Commercial Lighting &

Supply,

COMPLAINANT

Monarch Electric LLC

License No. ROC 311851, 310486

RESPONDENT

No. 2020A-05328-NPC-ROC

ADMINISTRATIVE LAW JUDGE

DECISION

HEARING: March 30, 2021

APPEARANCES: Shari Eberlein for Complainant; no one appeared for Respondent

ADMINISTRATIVE LAW JUDGE: Thomas Shedden

FINDINGS OF FACT

On February 26, 2021, the Registrar of Contractors (“ROC”) issued a Notice of Hearing on Contested Case setting the above-captioned matter for hearing at 9:00 a.m. on March 30, 2021 at the Office of Administrative Hearings.

Through the Notice of Hearing ROC alleges that Respondent Monarch Electric LLC may have violated Ariz. Rev. Stat. section 32-1154(A)(10).

Respondent holds license numbers 311851 and 310486 issued by ROC.

Complainant is DS & J Enterprises Inc.

No one appeared for Respondent at the scheduled hearing time and the matter was convened in its absence at about 9:14 a.m.

Complainant sold to Respondent material used by Respondent in connection with its license.

On or about November 9, 2020, Complainant filed with ROC a complaint against Respondent alleging that Respondent owed Complainant $10,989.11.

On January 5, 2021, ROC issued a Citation in which it alleged that Respondent may have violated Ariz. Rev. Stat. section 32-1154(A)(10).

ROC’s administrative record includes a text message or email from Levi Hernandez of Monarch Electric LLC to ROC showing that debt was valid, and that Monarch was experiencing financial difficulty and was filing for bankruptcy.

At the hearing, Complainant’s president Shari Eberlein provided credible testimony showing that as of the hearing date Respondent had not repaid any of the $10,989.11 that was owing at the time Complainant filed its complaint.

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).

Among the grounds for suspension or revocation of a contractor’s license is a “[f]ailure by [the] 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.” Ariz. Rev. Stat. § 32-1154(A)(10).

The preponderance of the evidence shows that Respondent owes Complainant more than $750 for materials purchased in connection with Respondent’s operations as a contractor.

The preponderance of the evidence shows that Respondent has violated section 32-1154(A)(10).

Respondent’s license should be suspended until it pays to Complainant $10,989.11.

RECOMMENDED ORDER

IT IS RECOMMENDED that Monarch Electric LLC’s license numbers 311851 and 310486 be suspended until the Registrar receives proof that it has paid to DS & J Enterprises Inc. $10,989.11.

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, April 1, 2021.

/s/ Thomas Shedden

Thomas Shedden

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors

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-137160-45720000