ALJDEC decisions subject to certification as final
2021A-02251-NPC-ROC · Registrar of Contractors · 2021-08-13
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
Tradesmen International, LLC,
COMPLAINANT,
v.
Surface Select Construction, Inc.
License No. ROC 282405,
RESPONDENT.
No. 2021A-02251-NPC-ROC
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: August 11, 2021
APPEARANCES: Justin Bjornson appeared on behalf of Complainant Tradesmen International, LLC. No one appeared on behalf of Surface Select Construction, Inc.
ADMINISTRATIVE LAW JUDGE: Velva Moses-Thompson
_____________________________________________________________________
FINDINGS OF FACT
1. On July 2, 2021, the Arizona Registrar of Contractors (Registrar)
issued a Notice of Hearing setting the above-captioned matter for hearing at 1:00 p.m. on August 11, 2021, at the Office of Administrative Hearings (OAH) in Phoenix, Arizona.
2. No representative for Respondent Surface Select Construction, Inc.
(Surface Select or Respondent) appeared at the scheduled time and the matter was convened in its absence.
3. Surface Select holds license number 282405 issued by the Registrar.
4. In July of 2020, Tradesmen International, LLC (Tradesman) and Surface Select entered into an agreement wherein Tradesman would provide skilled labor at Surface Select’s construction site (the project).
5. Tradesman provided laborers who performed drywall work at the project.
7. From March 2020 to May of 2020, Tradesmen issued invoices to Surface Select in the amount of $16,112.87 for labor. See Exhibit A, pgs. 2-11.
8. Surface Select failed to pay the invoices.
9. On or about May 30, 2021, the Registrar received a complaint from Tradesman alleging that Surface Select failed to pay it $16,112.87 for labor provided to Surface Select in connection with the project.
10. On June 3, 2021, the Registrar issued a Citation against Surface Select’s license alleging that Surface Select may have violated Ariz. Rev. Stat. section 32-1154(A)(10).
11. Surface Select filed a timely answer to the Citation.
12. The matter was referred to the OAH for an evidentiary hearing.
13. A hearing was held on August 11, 2021.
14. At hearing, Mr. Bjornson testified on behalf of Tradesman. Mr. Bjornson explained that Surface Select failed to pay Tradesman $16,112.87 for drywall work performed at the project.
15. Administrative notice is taken of Respondent’s license history. According to the Registrar’s website on August 13, 2021, Respondent’s license was issued on November 30, 2012, and is active. Such prior License record history shows that there are currently two open complaints against Respondent’s license. Such prior License record history also shows that Respondent’s license has never been disciplined by the Registrar.
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.
“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.”
10. 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.
11. 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, Surface Select Construction, Inc.’s license number 282405 is suspended unless the Registrar receives and accepts written verification that Surface Select Construction, Inc. has paid to Tradesmen International, LLC $16,112.87 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, August 12, 2021.
/s/ Velva Moses-Thompson
Administrative Law Judge
Transmitted electronically to:
Jeffrey Fleetham, Director
Registrar of Contractors