ALJDEC decisions subject to certification as final

2021A-03402-CHC-ROC · Registrar of Contractors · 2021-11-08

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

John E Nelson ,

COMPLAINANT

PDM and Co Construction Incorporated

DBA: McFate Construction ,

License No. ROC 274927,

RESPONDENT

No. 2021A-03402-CHC-ROC

ADMINISTRATIVE LAW JUDGE

DECISION

HEARING: October 22, 2021

APPEARANCES: John Nelson on his own behalf; Phillip McFate for Respondent

ADMINISTRATIVE LAW JUDGE: Thomas Shedden

FINDINGS OF FACT

On September 14, 2021, the Registrar of Contractors (“ROC”) issued a Notice of Hearing on Contested Case setting the above-captioned matter for hearing on October 22, 2021 at the Office of Administrative Hearings.

Through its Notice of Hearing ROC alleges that Respondent PDM and Co Construction Incorporated may have violated Ariz. Rev. Stat. sections 32-1154(A)(1) and (A)(12).

Respondent holds license No. 274927 issued by ROC. Phillip McFate, Respondent’s qualifying party appeared and testified for Respondent.

Mr. McFate testified that as of the hearing date, Respondent’s license was revoked, but Respondent was working with ROC to get that license reinstated.

Complainant is John E. Nelson, who appeared and testified and presented the testimony of his wife, Velda Nelson.

Respondent entered a contract with Mr. Nelson in which Respondent was to install a metal roof at a house that presumably is owned by Mr. Nelson.

Mr. Nelson put down a deposit of $10,751 through a check dated April 2, 2021.

As of the hearing date, Respondent had not performed any work and had not delivered to the site any material. Mr. Nelson had removed from the roof solar panels in anticipation of Respondent performing its work.

Mr. and Ms. Nelson each testified as to their loss of confidence in Respondent and their concerns that Respondent had not been forthright during the process.

Mr. McFate expressed remorse over the situation and acknowledged that Respondent had failed to perform a promised. He explained that he had experienced financial problems of an extremely personal nature and that he did not convey that information to the Nelsons as he should have.

As of the hearing, Respondent had not paid for the roofing materials required, but Mr. McFate testified to the effect that he would be able to do so and sought a resolution that might include delivery of the material to the house. Mr. Nelson explained his reluctance to accept any proposed solution outside of ROC’s existing process.

Mr. McFate also expressed his willingness and desire to have Respondent finish the job, but effectively acknowledged that this was not an option because its license is revoked.

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).

The Administrative Law Judge may consider ROC’s administrative record. See Ariz. Admin. Code § R4-9-118.

Ariz. Rev. Stat. section 32-1154(A)(1) provides that a license holder may not abandon a contract or refuse to perform after submitting a bid on work without legal excuse for the abandonment or refusal.

Ariz. Rev. Stat. section 32-1158 lists nine elements that must be set out in writing in any contract of more than $1000 entered into between the owner of a property and the contractor.

Ariz. Rev. Stat. subsection 32-1154(B)(3) provides that ROC “May temporarily suspend ... 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).

The preponderance of the evidence shows that Respondent accepted a deposition from Mr. Nelson but then abandoned the project in violation of Ariz. Rev. Stat. section 32-1154(A)(1).

There was no evidence adduced showing that Respondent had violated Ariz. Rev. Stat. section 32-1158 and therefore it has not been proven that Respondent violated subsection 32-1154(A)(12).

Considering the facts of this matter, Respondent should be ordered to pay to Mr. Nelson restitution in the amount of $10,751 as a precondition to reinstating its currently revoked license. See Sunpower of Arizona v. Arizona Registrar of Contractors, 166 Ariz. 437, 803 P.2d 430 (App. 1990)(ROC may order a party to pay restitution as a condition to the reinstatement of a suspended license.).

RECOMMENDED ORDER

IT IS RECOMMENDED that the Registrar order Respondent PDM and Co Construction Incorporated to pay to John E. Nelson restitution of $10,751.00.

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, November 8, 2021.

/s/ Thomas Shedden

Thomas Shedden

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors

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001

-137160-45720000