ALJDEC decisions subject to certification as final

2021A-01468-NPC-ROC · Registrar of Contractors · 2021-09-02

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HR Foam and Insulation LLC,

COMPLAINANT

Sonoran Underground LLC,

DBA: Sonoran Remodel & Development,

License No. ROC 315640,

RESPONDENT

No. 2021A-01468-NPC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: July 13, 2021

APPEARANCES: Thomas Haystacker appeared on behalf of Complainant, HR Foam and Insulation, LLC. Chris Stahlnecker appeared on behalf of Respondent Sonoran Underground, LLC.

ADMINISTRATIVE LAW JUDGE: Adam D. Stone

_____________________________________________________________________

FINDINGS OF FACT

On June 7, 2021, the Registrar of Contractors (“ROC”) issued a Notice of Hearing on Contested Case setting the above-captioned matter for hearing on July 13, 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).

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

On April 5, 2021, Complainant filed with ROC a complaint against Respondent alleging that Respondent owed Complainant $5,150.00.

At hearing, Mr. Stahlneckeer acknowledged that Respondent owed Complainant $5,150.00.

Mr. Stahlnecker testified to the effect that Respondent was experiencing financial hardship related to issues that occurred on a number of jobs.

The parties agreed that commencing on or before August 16, 2021, Respondent would make monthly payments of at least $1,000.00 per month. The last payment would be $1,150.00 or the remaining balance.

On August 20, 2021, Complainant informed the Tribunal that Respondent missed its first payment.

The Tribunal then issued an Order on August 20, 2021, requiring Respondent to show why it had not made the payment. To date, nothing has been received by the Tribunal from Respondent as to why the first payment was not made.

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. Although Mr. Stahlnecker testified as to Respondent’s financial status generally, Respondent did not assert that it had not been paid for any of the jobs for which Complainant supplied Respondent with material.

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 $5,150.00.

/ / /

RECOMMENDED ORDER

IT IS RECOMMENDED that Sonoran Underground LLC’s license number 315640 be suspended until the Registrar receives proof that it has paid to HR Foam and Insulation, LLC $5,150.00.

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, September 2, 2021.

/s/ Adam D. Stone

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors

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