ALJDEC decisions subject to certification as final

2021A-00892-NPC-ROC · Registrar of Contractors · 2021-08-02

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Modern Group LLC,

COMPLAINANT

Bradshaw Construction Company LLC

DBA: 3CGC,

License No. ROC 277907,

RESPONDENT

No. 2021A-00892-NPC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: July 23, 2021

APPEARANCES: Tom Blum appeared via Google Meet for Complainant Modern Group, LLC. Respondent Bradshaw Construction Company LLC was represented by Joseph G. Urtuzuastegui III, Esq. who appeared via Google Meet.

ADMINISTRATIVE LAW JUDGE: Adam D. Stone

_____________________________________________________________________

FINDINGS OF FACT

On June 11, 2021, the Registrar of Contractors (“ROC”) issued a Notice of Hearing on Contested Case setting the above-captioned matter for hearing on July 23, 2021 at the Office of Administrative Hearings.

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. 277907 issued by ROC. Michael James Capuzzo is Respondent’s qualifying party and an officer in the corporation. According to the ROC website, the license was voluntarily cancelled on May 26, 2021.

Complainant is Modern Group LLC.

Complainant and Respondent agreed to a labor swap on two projects, namely “Leach” and “Shultz” in late 2018.

On or about March 1, 2021, Complainant filed a complaint with ROC against Respondent alleging that Respondent owed Complainant $61,018.00.

Complainant presented the testimony of Tom Blum and Dave Bruning and offered no exhibits into evidence.

Mr. Blum testified that as to the Leach project, there was $3,248.00 due and owing and the last invoice was presented to Respondent on November 8, 2018.

Mr. Blum also testified that there was a written contract between the two parties, and Respondent had made some payments towards the labor share on the Leach project, but a balance still remained. In addition, Mr. Blum testified that he believed that Respondent had been paid in full on the Leach project.

As to the Schultz project, Mr. Blum testified that there was no written contract between the parties, and assumed that based upon the parties previous dealings, that the terms were not an issue. Mr. Blum further testified that Respondent too had made some payments towards the invoices, but that $57,770.00 remained due. Mr. Blum also testified that the last invoice was sent on or about December 31, 2018, and believed that work stopped at that time as well.

Mr. Bruning testified that he organized the labor swap with Respondent on the Shultz project. He testified that there was no written contract just an oral agreement between himself and Mike Capuzzo. Mr. Bruning also testified that the work was completed on the Schultz project towards the end of December 2018.

Respondent submitted eight exhibits into evidence and Mike Capuzzo testified its behalf.

Mr. Capuzzo testified that he typically engages in labor swaps, but the terms of payment would be based upon each job.

As to the Leach project, Mr. Capuzzo testified he was paid in full on the job and paid $53,312.00 to Complainant, and disputed that he owed any remained monies on that project, as there were fixed labor costs through the contract with Leach on the project.

As to the Schultz project, Mr. Capuzzo testified that while there was no written agreement with Complainant, Respondent made whatever labor payments it received on the project to Complainant. Mr. Capuzzo testified further that Respondent paid a total of $43,397.58 to Complainant on the Schultz project and denied he owed any further amounts, as this was the amount he received from Schultz for the labor portion.

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).

Ariz. Rev. Stat. § 32-1162(A)(2) provides, “[a] person may file a written complaint pursuant to section 32-1155 with the registrar alleging a licensee has committed a violation of this chapter. The complaint must be filed:... [f]or all other projects, within two years after the completion of the specific project.”

The preponderance of the evidence shows that in this case, the Complainant did not file the complaint within the two-year statute of limitations. Mr. Blum signed and dated the complaint on February 24, 2021 and it was not received by the ROC until March 1, 2021. With the Leach project, the last invoice was issued on November 8, 2018 and there was no testimony that Complainant did not finish its work. As to the Schultz project, Mr. Blum testified that work was completed on December 31, 2018 and on the same day produced an invoice for payment. Even using the date on the Complaint, Complainant filed the same almost 26 months after work of the specific projects stopped.

Therefore, the preponderance of the evidence shows that Respondent has not violated section 32-1154(A)(10) as the Complaint was filed after the two-year statute of limitations.

RECOMMENDED ORDER

IT IS RECOMMENDED that the complaint against Respondent’s license number 277907 be 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, August 2, 2021.

/s/ Adam D. Stone

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors

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