ALJDEC decisions subject to certification as final
2021A-05132-NPC-ROC · Registrar of Contractors · 2021-12-20
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
R & S Painting LLC,
COMPLAINANT,
v.
Jupiter Coatings
License No. ROC 331331,
RESPONDENT.
No. 2021A-05132-NPC-ROC
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: December 16, 2021
APPEARANCES: Joseph Ruiz appeared on behalf of Complainant R & S Painting LLC. No one appeared on behalf of Respondent Jupiter Coatings.
ADMINISTRATIVE LAW JUDGE: Velva Moses-Thompson
_____________________________________________________________________
FINDINGS OF FACT
1. Respondent Jupiter Coatings (Jupiter) holds license number 331331
issued by the Arizona Registrar of Contractors (the ROC).
2. Complainant R & S Painting LLC (R&S) and Jupiter entered into a verbal contract wherein R&S would provide painting services for Jupiter in connection with a construction project located at 12475 N. 23rd Avenue, Phoenix AZ 85085 (the project).
3. R&S performed painting work for at the project. R&S provided a crew of 5 men who each worked 32 hours during the timeframe of August 30, 2021 to September 5, 2021. On September 27, 2021, R&S sent an invoice to Jupiter for the total amount of $3,250 for the work performed from August 30, 2021 to September 5, 2021.
4. Jupiter did not submit payment to R&S.
5. On October 12, 2021, the Arizona Registrar of Contractors (ROC) received a complaint from R&S alleging that Jupiter failed to pay monies owed to R&S for labor provided at the project.
6. On October 26, 2021, the ROC issued a Citation against the license of Jupiter alleging that it violated Arizona Revised Statutes (A.R.S.) § 32-1154(A) (10).
7. The Citation shows that if the Administrative Law Judge finds that any of the alleged charges are valid, the ROC may suspend or revoke Jupiter’s license.
8. Respondent filed a timely appeal to the Citation.
9. The matter was referred to the Office of Administrative Hearings for an
evidentiary hearing.
10. On January 19, 2021, the ROC issued a Notice of Hearing setting the above-captioned matter for hearing at 9:00 a.m. on December 16, 2021, at the Office of Administrative Hearings (OAH) in Phoenix, Arizona.
11. A hearing was held on December 16, 2021.
12. At hearing, Joseph Ruiz testified on behalf of R&R. Mr. Ruiz is the owner of R&R. Mr. Ruiz explained that Jupiter failed to pay for labor provided by R&R at the project in the total amount of $3,250.
13. Jupiter did not appear at the hearing on December 16, 2021 and did not filed a request to appear telephonically. Although the start of the duly noticed hearing was delayed approximately 15 minutes to allow Jupiter additional time, Jupiter did not appear, through an authorized member, employee, or attorney, and did not contact OAH to request that the start of the hearing be further delayed. Consequently, Jupiter did not present any evidence to defend its 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 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 ROC’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 ROC’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, license number 331331 held by Jupiter Coatings is suspended unless the ROC receives and accepts written verification that Jupiter Coatings has paid to R & S Painting, LLC, $3,250 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, December 20, 2021.
/s/ Velva Moses-Thompson
Administrative Law Judge
Transmitted electronically to:
Jeffrey Fleetham, Director
Registrar of Contractors