ALJDEC decisions subject to certification as final
2022A-01684-NPC-ROC · Registrar of Contractors · 2022-06-08
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
Superstition Safety Services, LLC,
COMPLAINANT,
v.
Elidas Residential Contracting, LLC
License No. ROC 323400,
RESPONDENT.
No. 2022A-01684-NPC-ROC
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: May 23, 2022
APPEARANCES: Sheldon Haywood appeared on behalf of Complainant Superstition Safety Services, LLC. Enrique Venegas appeared on behalf of Respondent Elidas Residential Contracting, LLC.
ADMINISTRATIVE LAW JUDGE: Velva Moses-Thompson
_____________________________________________________________________
FINDINGS OF FACT
1. Enrique Venegas is the qualifying party for Respondent Elidas Residential Contracting, LLC (Elidas).
2. Elidas is a general contractor.
3. Sheldon Haywood is the qualifying party for Complainant Superstition Safety Services, LLC (Superstition).
4. Superstition holds a contractor’s license for fire alarm installation.
5. In or around April of 2020, Elidas and Superstition entered into a contract wherein Superstition would install a fire alarm system at a high school for one of Elidas’s customers. See pg. 42 of the administrative record of the Arizona Registrar of Contractors (ROC).
6. On June 25, 2020, Superstition issued invoice #8249 to Elidas for the fire alarm installation. The invoice provided, in relevant part, as follows:
Fire Alarm TI
Installed the following fire alarm TI work to add adequate audible coverage to this suite:
(1) 50 Point Addressable Fire Control Panel
(1) Voice Evacuation Panel
(3) Annunciator
(4) 12V 7Ah Batteries
(2) Pull Stations
* Miscellaneous wire, fittings and mounting material
Parts: $5,261.00
Labor: $2,880.00
System Design
***Change Order for Re-Design of new Voice Evacuation System:
Provide PE stamped drawings/design, submittal, permits and final inspection City of Glendale $300.00
*Excludes: Re-drawing/design if the City requires a new fire alarm panel and voice evacuation
*A service charge of 2% per month will be charged on invoices over 30 days past due. Superstition Fire Protection reserves the right to remove equipment not paid within 90 days from the date of invoice.
Balance Due: $8,441.00
7. Elidas did not pay the invoice.
8. On or about March 1, 2022, Superstition filed a complaint with the ROC alleging non-payment for materials and labor rendered to Elidas in connection with Elidas's work as a contractor.
9. On March 16, 2022, the ROC issued a Citation to Elidas for an alleged violation of Arizona Revised Statues (A.R.S.) section 32-1154(A)(10).
10. Elidas filed a timely answer to the Citation. In the answer, Mr. Venegas explained that he ran 110 feet of electrical conduit and weather tight fittings on the top of the roof to the end of the building. Mr. Venegas alleged that it was Superstition’s responsibility to purchase and install the conduit and fittings. Mr. Venegas referred to invoice #8249 that includes, “Miscellaneous wire, fittings and mounting material”.
11. The matter was referred to the Office of Administrative Hearings for an evidentiary hearing.
12. A hearing was held on May 23, 2022.
13. At hearing, Mr. Heywood testified on behalf of Superstition. Mr. Venegas testified on behalf of Elidas.
14. Mr. Venegas stated that he should not be required to pay the full $8,441 reflected in invoice #8249. Mr. Venegas stated that he installed the conduit and the wiring and should only be required to pay Superstition for the parts shown in invoice #8249.
15. Mr. Heywood explained that Superstition performed labor and provided materials as described in invoice #8249, which includes “miscellaneous wire, fittings and mounting material.” Mr. Heywood explained that the “miscellaneous wire, fittings, and mounting material did not include conduit and 120 volts of wiring because Superstition is only licensed to perform low voltage wiring. See the Hearing Audio record (1403 2022-05-23).AAC at 33:00 -50:00 minutes. Furthermore, Mr. Heywood explained that Superstition specifically excluded conduit and electrical work.
Mr. Heywood explained that Elidas, a general contractor, hired an electrician to install the conduit and 120 volts of wiring. Mr. Heywood stated that after the conduit was installed, Superstition ran low voltage wiring through the conduit. See id. Mr. Heywood explained that Elidas made a $1,500 payment to Superstition after the complaint was filed. Mr. Heywood testified to the effect that Elidas owes the remaining balance of $6,941.
16. I find Mr. Heywood’s testimony to be credible.
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. Arizona Administrative 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.” A.R.S. 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.” A.R.S. 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).
A.R.S. 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.
8. A.R.S. 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.”
9. 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.
10. The preponderance of the evidence shows that Respondent violated A.R.S. section 32-1154(A)(10) as alleged.
11. Based upon Respondent’s violation of the provisions of A.R.S. section 32-1154(A)(10), grounds exist to impose discipline against Elidas’s license.
12. Because A.R.S. section 32-1154(A)(10) only includes a licensee’s failure to pay for materials or services rendered in connection with the licensee’s operations as a contractor, not late fees, interest, or other consequential or contractual damages, the Administrative Law Judge does not recommend that Respondent be required to pay late fees as a condition of keeping its contractor’s license in good standing.
RECOMMENDed order
Based on the foregoing, it is recommended that the ROC suspend license number 2022A-01684 held by Elidas Residential Contracting, LLC until it has provided to the ROC, and the ROC has accepted, documents that establish that it has paid Complainant $6,941 in certified funds.
It is further recommended that when and if the ROC receives and accepts Respondent’s evidence that it has paid Complainant $6,941 in certified funds, the ROC may close the Complaint in Case No. 2021A-00278.
In the event of certification of this Administrative Law Judge Decision by the Director of the Office of Administrative Hearings, the effective date of the Order will be 40 days from the date of the certification.
Done this day, June 8, 2022.
/s/ Velva Moses-Thompson
Administrative Law Judge
Transmitted electronically to:
Jeffrey Fleetham, Director
Registrar of Contractors
By Miranda Alvarez
Legal Secretary