ALJDEC decisions subject to certification as final

2021A-04130-NPC-ROC · Registrar of Contractors · 2021-12-13

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

LVC Companies Inc,

License No. 257408,

COMPLAINANT,

v.

Arizona Pure Custom LLC,

License No. ROC 322095,

RESPONDENT.

No. 2021A-04130-NPC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: November 23, 2021

APPEARANCES: President and CEO Berton Bongard and Branch Manager Gary LaBorg appeared on behalf of Complainant, along with CFO Jeff Nelson and employee Art Olson. No one appeared on behalf of Respondent.

ADMINISTRATIVE LAW JUDGE: Kay Abramsohn

_____________________________________________________________________

FINDINGS OF FACT

1. On or about March 5, 2020, Complainant subcontracted with Respondent for work on a project for Respondent at Merrill Gardens (a health care facility) in Anthem, Arizona. See Exhibit 1. While there were some delays and scheduling issues, Complainant completed its work for Respondent at the project.

2. On June 20, 2020, Complainant invoiced Respondent $12,070.15. See Exhibit 3, Invoice #36569.

3. On June 23, 2020, Complainant invoiced Respondent an additional $8,600.00. See Exhibit 3, Invoice #38320.

4. On July 17, 2020, Complainant invoiced Respondent an additional $2,410.25. See Exhibit 3, Invoice #40034.

5. Respondent did not pay Complainant any amount on any of the three invoices.

6. On or about August 20, 2021, the Arizona Registrar of Contractors (Registrar) received a Non-Payment Complaint Form from Complainant alleging that Respondent had failed to pay for the work performed as specified on the invoices. See Exhibit 4.

7. On September 14, 2021, the Registrar issued a Citation against Respondent’s license for the alleged violation of Arizona Revised Statutes (A.R.S.) § 32-1154(A)(10). The Citation shows that if an Administrative Law Judge finds that the charge is valid, the Registrar may suspend or revoke Respondent’s license.

8. By letter dated September 28, 2021, Respondent filed its answer to the Citation, indicating that it had talked with Complainant and “will be making payments to them to fulfill the work that was done.” See Exhibit 5.

9. Despite efforts by Complainant to secure a payment plan from Respondent, the matter was not resolved informally by the parties and was referred to the Office of Administrative Hearings for an evidentiary hearing.

10. On October 20, 2021, the Registrar issued a Notice of Hearing (“Notice”) setting the matter for administrative hearing on November 23, 2021; Notice was issued to the parties by mail and email. The Notice shows that the hearing was set to consider the charges made in the Citation and Complaint.

11. By ORDER dated November 8, 2021, the Administrative Law Judge set this matter for virtual hearing through GOOGLE Meet to convene on November 23, 2021 at 9:00 a.m.; the ORDER Notice was issued to the parties by mail and email.

12. On November 23, 20201, the administrative hearing was convened through GOOGLE Meet. At the time of the hearing and for the duration of the presentation of evidence by Complainant, no one appeared on behalf of Respondent. Prior to the hearing being convened, no one on behalf of Respondent contacted the Office of Administrative Hearings to request a continuance or that the time for the hearing be further delayed, or to present any evidence at the hearing on behalf of Respondent. Therefore, the matter was convened at approximately 9:15 a.m. and was conducted in Respondent’s absence.

13. Complainant explained that their various and multiple efforts to reach out to Respondent even to have payment arrangements made were unsuccessful and that they had not heard from Respondent since approximately 2 weeks before the hearing date. Complaint further indicated that, to the best of their knowledge, Respondent had been paid on the project; to date, Respondent has not made any payment to Complainant. Given the number of times they have reached out to Respondent and the unfulfilled promises to pay or make payment arrangements, Complainant attributes Respondent’s omission to make payment to intentional delay.

14. Since the date of the hearing, Complainant has not informed the Tribunal of any settlement or resolution by the parties of the instant matter.

15. Administrative notice is taken of Respondent’s license history. According to the Registrar’s website on December 13, 2021, Respondent has two contracting licenses: (a) Respondent’s License No. 322095 is currently suspended for lack of a bond; the bond was cancelled effective September 10, 2020. The Registrar’s website indicates 1 open case and 1 closed cases (disciplined) against Respondent’s License No. 322095; (b) Respondent’s License No. 239705 is active; this license was first issued on November 16, 2007 and is renewed through November 2023. The Registrar’s website indicates 3 open cases and 2 closed cases (1 discipline and 1 resolved) against Respondent’s License No. 239705.

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 § R2-19-119.

The suspended status of Respondent’s license does not deprive

Complainant of its right to prosecute its complaint against Respondent and does not prevent the Registrar from determining the merits of Complainant’s complaint. This matter lies within the Registrar’s jurisdiction. Additionally, Ariz. Rev. Stat. § 32-1154(B)(3) provides that the Registrar may temporarily suspend, with or without conditions, and may permanently revoke “any or all licenses” if the licensee is guilty of or commits any of the acts or omissions set forth in Ariz. Rev. Stat. § 32-1154(A).

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).

Ariz. Rev. Stat section 32-1154(A) provides that:

The holder of a license or any person named on a license pursuant to this chapter may 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 $750 when due for materials or services rendered in connection with the licensee's operations as a contractor unless the licensee proves that the licensee lacks the capacity to pay and has not received sufficient monies as payment for the particular construction work project or operation for which the services or materials were rendered or purchased.

A preponderance of the hearing record and evidence provided for consideration in this matter demonstrated that, despite being invoiced by Complainant for work performed under the parties’ March 5, 2020 contract, Respondent has not made payment to Complainant in violation of Ariz. Rev. Stat. § 32-1154(A)(10) as alleged in Complainant’s Non-Payment Complaint and in the Registrar’s CITATION.

Respondent failed to appear and/or provide any evidence of a lack of capacity to pay or of non-receipt of sufficient monies on that particular construction work project [Merrill Gardens] for which Complainant’s services were rendered. Therefore, the Administrative Law Judge concludes that both of Respondent’s licenses should be disciplined.

ORDER

IT IS ORDERED that on the effective date of the final Order in this matter, Respondent’s License No. 322095 and Respondent’s License No. 239705 are revoked unless the Registrar receives and accepts written verification that Respondent Arizona Pure Custom, LLC, has paid, in certified funds, the $23,081.00 owed to Complainant LVC Companies Inc.

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, December 13, 2021.

/s/ Kay A. Abramsohn

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors