ALJDEC decisions subject to certification as final

2021A-04239-NPC-ROC · Registrar of Contractors · 2022-01-28

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Sunstate Equipment Co LLC,

COMPLAINANT,

v.

Leyva Development & Construction LLC,

License No. ROC 311854,

RESPONDENT.

No. 2021A-04239-NPC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: January 19, 2022

APPEARANCES: John D. Parker, II, Esq. appeared on behalf of Complainant Sunstate Equipment Co LLC. No one appeared on behalf of Respondent Leyva Development & Construction LLC.

ADMINISTRATIVE LAW JUDGE: Kay Abramsohn

_____________________________________________________________________

FINDINGS OF FACT

1. Complainant rented equipment to Respondent in August of 2020 and in September of 2020. See Exhibit 5.

2. On September 1, 2020, Complainant invoiced Respondent in the amount of $1,398.02 for the August equipment rental. See Exhibit 3 (as to Invoice #8574970); see also Exhibit 5.

3. On September 16, 2020, Complainant invoiced Respondent in the amount of $853.42 for the September equipment rental. See Exhibit 3 (as to Invoice #8589637); see also Exhibit 5.

4. Respondent did not pay Complainant any amount on either invoice. Respondent owed Complainant a total of $2,251.44.

5. On May 17, 2021, Complainant obtained a Default Judgment in Dreamy Draw Justice Court in Case No. CC2021041586 RC. See Exhibit 1. The Court awarded judgment of $2,251.44 with interest at eighteen percent (18%) per year from October 17, 2020 until paid, and awarded reasonable attorney’s fees and costs in the amounts of $1,097.50 and $276.07, respectively as of April 27, 2021, with interest at 4.25% per year from May 17, 2021 until paid. Additionally, the Court noted that Complainant was further entitled to all reasonable post-judgment attorneys’ fees and costs.

6. On August 27, 2021, the Arizona Registrar of Contractors (Registrar) received a Non-Payment Complaint from Complainant alleging that Respondent had failed to pay for the equipment rentals as specified on the two invoices and in response to the Justice Court Default Judgment.

7. On September 23, 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. On or about October 7, 2021, Respondent filed its answer to the Citation, indicating that it had some family and monetary losses in the past year resulting in a cash flow challenge, but offering to pay the balance due in full within 90 days.

9. Respondent did not make payment to Complainant; the matter was not resolved informally by the parties.

10. The matter was referred to the Office of Administrative Hearings (OAH) for an evidentiary hearing. On December 15, 2021, the Registrar issued a Notice of Hearing setting the matter for administrative hearing on January 19, 2022, indicating that the OAH would issue an ORDER regarding conducting the hearing through virtual means. The Notice of Hearing shows that the hearing was set to consider the charges made in the Citation and Non-Payment Complaint.

11. By OAH ORDER dated January 3, 2022, the hearing was set to convene through virtual means; the ORDER was emailed to the parties at their addresses of record with the Registrar.

12. On January 19, 2022, Complainant appeared; however, no one appeared on behalf of Respondent at the time the hearing was set to begin or for ten minutes thereafter. No one on behalf of Respondent contacted the Office of Administrative Hearings to request a continuance, to request that the time for the hearing be further delayed, or to present any evidence at the hearing on behalf of Respondent. The matter was conducted in Respondent’s absence.

13. At hearing, John Parker presented documents in support of the Non-Payment Complaint. Mr. Parker noted that, despite the indication that the full amount would be paid “with in 90 days” in its October 2021 “response” to the Citation, Respondent did not make any payment.

14. Administrative notice is taken of Respondent’s license history. According to the Registrar’s website on January 28, 2022, Respondent’s License No. 311854 was first issued on February 27, 2017, was renewed through February 28, 2023, but was suspended in a disciplinary action as of October 20, 2021 (the last license status change). The Registrar’s website indicates 2 open cases and 3 closed cases (1 with discipline and 2 as resolved or settled) against Respondent’s license.

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.

“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).

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 preponderance of the evidence shows that Respondent violated Ariz. Rev. Stat section 32-1154(A)(10) as alleged in the Citation.

RECOMMENDED ORDER

IT IS ORDERED that on the effective date of the final Order in this matter, Respondent’s License No. 311854 is revoked unless the Registrar receives and accepts written verification that Respondent Leyva Development & Construction LLC has paid, in certified funds, the $2,251.44 owed to Complainant Sunstate Equipment Co LLC.

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, January 28, 2022.

/s/ Kay A. Abramsohn

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors