ALJDEC decisions subject to certification as final

2021A-00039-NPC-ROC · Registrar of Contractors · 2021-06-08

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Phoenix Scaffolding and Equipment Inc,

COMPLAINANT

A&F Stucco LLC

License No. ROC 322248,

RESPONDENT

No. 2021A-00039-NPC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: May 14, 2021

APPEARANCES: Stephanie Davis appeared via Google Meet on behalf of Complainant Phoenix Scaffolding and Equipment Inc. Freddy Romero appeared via Google Meet on behalf of A&F Stucco LLC.

ADMINISTRATIVE LAW JUDGE: Adam D. Stone

FINDINGS OF FACT

On March 5, 2021, the Registrar of Contractors (“ROC”) issued a Notice of Hearing on Contested Case setting the above-captioned matter for hearing on April 6, 2021, at the Office of Administrative Hearings.

The Notice of Hearing shows that the hearing was being conducted on the charges made in the complaint and citation that were served on Respondent A&F Stucco LLC on or about January 11, 2021.

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

Respondent holds License No. 322248 issued by ROC. Freddy Romero is Respondent’s qualifying party and an officer in the corporation.

Complainant is Phoenix Scaffolding and Equipment Inc.

Complainant rented to Respondent various scaffolding equipment used by Respondent in connection with its license.

On or about December 28, 2020, Complainant filed with ROC a complaint against Respondent alleging that Respondent owed Complainant $23,644.93.

The matter was continued, and the hearing was convened on May 14, 2021.

Stephanie Davis testified on behalf of Complainant and offered 30 exhibits into evidence.

Ms. Davis testified that Complainant signed a contract for the scaffolding with Respondent, under Respondent’s license on or about November 25, 2019.

In addition, Ms. Davis testified that several times she tried to process a credit card payment, however, the card was always declined.

Ms. Davis further testified that Commonwealth Construction Corp. (Commonwealth) remitted a $15,000.00 payment to Complainant but did not believe it had to pay the full amount.

Freddy Romero, on behalf of Respondent, testified that he was a subcontractor on a job and was to rent scaffolding. Mr. Romero testified further that this was his first-time renting scaffolding, and he believed he signed a contract with “Western” and not Commonwealth.

At the hearing, the parties agreed that Respondent would pay to Complainant $8,644.93 by 5:00 p.m. on June 1, 2021. The tribunal left the record open until June 2, 2021, for a status update to determine if Respondent had made the payment.

On June 2, 2021, per the status update submitted by Complainant, Respondent failed to make the payment to Complainant.

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 services rendered in connection with Respondent’s operations as a contractor. While Mr. Romero’s inexperience in renting scaffolding certainly could have cause some confusion for him, it is inexcusable for him not to have made any payments for the rented scaffolding.

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 $8,644.93.

RECOMMENDED ORDER

IT IS RECOMMENDED that A&F Stucco LLC’s license number 322248 be suspended until the Registrar receives proof that it has paid to Phoenix Scaffolding and Equipment, Inc. $8,644.93 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.

-54864001

001

-137160-45720000Done this day, June 8, 2021.

/s/ Adam D. Stone

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors

-54864001

001

-137160-45720000