ALJDEC decisions subject to certification as final
2022A-00647-CHC-ROC · Registrar of Contractors · 2022-05-27
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
Georgina Mane Palmer,
COMPLAINANT
v.
Desert Rays Construction LLC,
License No. ROC 305231,
RESPONDENT
No. 2022A-00647-CHC-ROC
ADMINISTRATIVE LAW JUDGE
DECISION
HEARING: May 27, 2022
APPEARANCES: Georgina Mane Palmer on her own behalf; no one appeared for Respondent
ADMINISTRATIVE LAW JUDGE: Thomas Shedden
FINDINGS OF FACT
On April 22, 2022, the Registrar of Contractors (“ROC”) issued a Notice of Hearing on Contested Case setting the above-captioned matter for hearing at 9:00 a.m. on May 27, 2022.
Through its Notice of Hearing, ROC alleges that Respondent Desert Rays Construction LLC may have violated Ariz. Rev. Stat. section 32-1154(A)(1). Respondent holds license No. 305231 issued by ROC.
No one appeared for Respondent and the matter was convened in its absence at about 9:17 a.m.
Complainant Georgina Mane Palmer appeared and testified. ROC investigator Mark Nipp also testified.
On March 24, 2021, Complainant entered a contract with Respondent that called for Respondent to build a pergola over an existing patio at Complainant’s house.
Complainant paid Respondent a deposit of $3000.
On or about January 24, 2022, Complainant filed with ROC a complaint alleging abandonment on Respondent’s part.
On February 16, 2022, ROC’s Mr. Nipp conducted a jobsite inspection at which time he determined that Respondent installed two support posts, but he did not observe that any other work had been completed.
On February 16, 2022, ROC issued to Respondent a Directive through which it ordered Respondent to finish the project in accordance with the parties’ contract.
Respondent did not complete any additional work at Complainant’s home.
ROC issued to Respondent a Citation dated March 15, 2022, through which ROC alleges that Respondent may have violated Ariz. Rev. Stat. section 32-1154(A)(1).
As of the hearing date, Respondent had not performed any additional work at Complainant’s house.
Complainant seeks to have her $3000 refunded.
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) 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:
Abandonment of a contract or refusal to perform after submitting a bid on work without legal excuse for the abandonment or refusal.
Respondent entered a contract to install a pergola at Complainant’s house but has failed to do so. The preponderance of the evidence shows that Respondent abandoned its contract or refused to perform without legal excuse, which is a violation of Ariz. Rev. Stat. section 32-1154(A)(1).
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).
Considering the facts of this matter, Respondent’s license should be suspended until Respondent pays to Complainant restitution in the amount of $3000. 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 of Contractors suspend Respondent Desert Rays Construction LLC’s license number 305231 until Respondent provides proof that it has paid to Complainant $3000 in restitution.
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.
-54864001
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-137160-45720000Done this day, May 27, 2022.
/s/ Thomas Shedden
Thomas Shedden
Administrative Law Judge
Transmitted electronically to:
Jeffrey Fleetham, Director
Registrar of Contractors
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-137160-45720000By Miranda Alvarez
Legal Secretary