ALJDEC decisions subject to certification as final

2021A-06657-NPC-ROC · Registrar of Contractors · 2022-04-11

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Calportland Co,

COMPLAINANT

v.

Predda Construction Inc,

License No. ROC 307420,

RESPONDENT.

No. 2021A-06657-NPC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: March 23, 2022.

APPEARANCES: Credit and Collections Manager George Butorac appeared on behalf of Calportland Co. (Complainant). Qualifying Party Pete Thomas appeared on behalf of Predda Construction (Respondent).

ADMINISTRATIVE LAW JUDGE: Kay Abramsohn

_____________________________________________________________________

FINDINGS OF FACT

1. Complainant and Respondent have been in a working relationship since 2003, with Complainant supplying material needed by Respondent at various projects.

2. With respect to some projects in 2021, Complainant was not timely paid on its invoices to Respondent.

3. On or about December 10, 2021, the Arizona Registrar of Contractors (Registrar) received a Non-Payment Complaint Form (Complaint) from Complainant alleging that Respondent had failed to pay for material supplied as specified on the listed invoices. See Hearing Packet, Complaint form.

4. The invoices were:

a. 8/11/2021, #95158287, for $2,166.00;

b. 8/13/2021, #95159892, for $5,682.75;

c. 8/20/2021, #95167120, for $2,517.00;

d. 9/2/2021, #95186584, for $12,319.5;

e. 9/14/2021, #95199334, for $2,874.00;

f. 10/14/2021, #95231674, for $954.94; and

g. 10/27/2021, #95248319, for $9,217.47.

5. By letter dated December 30, 2021, Respondent informed the Registrar that his family had contracted COVID and he had been unable to work, but was now back to work and trying to catch up. Respondent further noted that it intended to pay the total due in full.

6. On January 11, 2022, 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.

7. By letter received January 26, 2022, Respondent gave its written answer to the Citation, reiterating the pandemic illnesses that had set them behind and, again, further indicating that it intended to pay the amount due in full, as receivables came in.

8. The matter was not resolved informally by the parties and was referred to the Office of Administrative Hearings for an evidentiary hearing.

9. On February 16, 2022, the Registrar issued a Notice of Hearing (“Notice”) setting the matter for administrative hearing on March 23, 2022; 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.

10. At the time of the hearing, Complainant indicated that some payments had been received from Respondent in February, clearing some invoices, and that the amount due was now $26,195.48 [$21,536.97 plus finance charges] on two remaining invoices.

11. At the time of the hearing, Respondent acknowledged that it owed the monies and gave its credible apologies regarding having had to catch up after being unable to work for a time period.

12. At the time of the hearing, Respondent indicated that it had just made a debit card payment for invoice #95248319 and that it was looking to be able to pay the remaining invoice (with the applicable finance charges) before the decision in this matter was issued. While the referenced debit card payment was in process, Complainant was unable to specifically confirm that the payment had completed processing while the parties were on the record with the hearing.

13. Since the date of the hearing, and as of the date of this recommended decision Complainant has not informed the Tribunal of a resolution by the parties of the instant matter.

14. Administrative notice is taken of Respondent’s license history. According to the Registrar’s website on April 11, 2022, this case is the only open case with regard to 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.

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, with regard to the invoices from Complainant for materials, Respondent has not made full payment to Complainant in violation of Ariz. Rev. Stat. § 32-1154(A)(10) as alleged in Complainant’s Complaint and in the Registrar’s CITATION.

Based on the foregoing, the Administrative Law Judge concludes that Respondent’s license is subject to discipline.

ORDER

IT IS ORDERED that on the effective date of the final Order in this matter, Respondent’s License No. No. ROC 307420 is suspended unless the Registrar receives and accepts written verification that Respondent has paid, in certified funds, the $12,319.50 and the associated finance charges that Respondent owes to Complainant.

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, April 11, 2022.

/s/ Kay A. Abramsohn

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors

By: Miranda Alvarez

Legal Secretary