ALJDEC decisions subject to certification as final

2021A-02294-NPC-ROC · Registrar of Contractors · 2021-08-26

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Van Marcke Trade Supply,

COMPLAINANT

Black Hawk Plumbing & Maintenance LLC

License No. ROC 327441,

RESPONDENT

No. 2021A-02294-NPC-ROC

ADMINISTRATIVE LAW JUDGE

DECISION

HEARING: August 25, 2021

APPEARANCES: Janet Glover for Complainant; no one appeared for Respondent

ADMINISTRATIVE LAW JUDGE: Thomas Shedden

FINDINGS OF FACT

On July 9, 2021, the Registrar of Contractors (“ROC”) issued a Notice of Hearing on Contested Case setting the above-captioned matter for hearing at 1:00 p.m. on August 25, 2021 at the Office of Administrative Hearings.

Through its Notice of Hearing ROC alleges that Respondent Black Hawk Plumbing & Maintenance LLC may have violated Ariz. Rev. Stat. section 32-1154(A)(10). Respondent holds License No. 327441 issued by ROC.

No representative appeared for Respondent and the matter was convened in its absence at about 1:18 p.m.

Janet Glover, Complainant Van Marcke Trade Supply’s credit manager appeared and testified for Complainant.

On May 21, 2021, Complainant filed with ROC a complaint against Respondent alleging that Respondent owed Complainant $12,939.29 for material Complainant had supplied to Respondent for use in Respondent’s contracting business.

On June 4, 2021, the parties entered an agreement through which Respondent agreed to pay Complainant $2000 per month until the $12,939.29 was paid in full.

On June 16, 2021, ROC issued to Respondent a citation through which it alleged that Respondent may have violated Ariz. Rev. Stat. section 32-1154(A)(10).

On June 22, 2021 Respondent filed with ROC an answer showing that the parties had entered the payment plan agreement.

Respondent made payments to Complainant, but did not make the payment that was due in August 2021. As of the hearing date, Respondent still owed Complainant $4935.35.

Complainant presented credible evidence showing that Respondent was unwilling to pay the remaining balance due to Complainant.

Complainant was of the impression that Respondent may have been undergoing a change in ownership, but when Complainant contacted ROC, ROC had no record of such a change.

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 $4935.35 for materials provided in connection with Respondent’s operations as a contractor. The preponderance of the evidence shows that Respondent has violated section 32-1154(A)(10).

Ariz. Rev. Stat. subsection 32-1154(B)(3) provides that ROC “May temporarily suspend with or without imposition of specific conditions ... or permanently revoke any or all licenses issued under this chapter if the holder of the license ... commits any of the acts or omissions set forth in” subsection 32-1154(A).

Under these facts and circumstances, Respondent’s license should be suspended until it pays Complainant $4935.35.

RECOMMENDED ORDER

IT IS RECOMMENDED that the Registrar of Contractors suspend Respondent Blackhawk Plumbing & Maintenance LLC’s license number 327441 until ROC receives proof that Respondent has paid to Complainant Van Marcke Trade Supply $4935.35.

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 26, 2021.

/s/ Thomas Shedden

Thomas Shedden

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors

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-137160-45720000