ALJDEC decisions subject to certification as final
2022A-01775-NPC-ROC · Registrar of Contractors · 2022-06-10
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
Marquez Masonry, LLC,
COMPLAINANT,
v.
Tierra Custom Homes, Inc.
License No. ROC 174359,
RESPONDENT.
No. 2022A-01775-NPC-ROC
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: June 10, 2022
APPEARANCES: Jose Marquez appeared on behalf of Complainant Marquez Masonry, LLC. No one appeared on behalf of Respondent Tierra Custom Homes, Inc.
ADMINISTRATIVE LAW JUDGE: Velva Moses-Thompson
_____________________________________________________________________
FINDINGS OF FACT
1. Complainant Marquez Masonry, LLC (Marquez) and Respondent Tierra Custom Homes, Inc. (Tierra) entered into a contract wherein Marquez agreed to perform masonry work on several projects for Respondent Tierra Custom Homes, Inc.
2. Masonry issued invoices from 2018 to 2021 to Tierra after providing labor and materials as agreed. The total amount of the invoices issued to Tierra was $32,216.70. See id.
3. Tierra did not pay Marquez $32,216.70.
4. On or about March 2, 2022, Marquez filed a complaint with the ROC alleging that Tierra failed to pay for labor and materials provided to Tierra when the payments became due.
5. Tierra filed a timely answer to the Citation.
6. The matter was referred to the Office of Administrative Hearings for an evidentiary hearing.
7. On May 5, 2022, the Arizona Registrar of Contractors (ROC) issued a Notice of Hearing setting the above-entitled matter for hearing on June 10, 2022 at 9:00 a.m.
8. The ROC notified the parties through the Notice of Hearing that the parties were required to attend the hearing. The Notice of Hearing further provided that the citation and complaint allege that Tierra violated Arizona Revised Statutes (A.R.S.) 32-1154(A)(10), and therefore, there is cause to suspend or revoke Tierra’s license.
9. No one appeared on behalf of Tierra at the hearing on June 10, 2022. Consequently, Tierra did not present evidence to defend its license.
10. At hearing, Jose Marquez testified on behalf of Marquez. Mr. Marquez explained that Tierra failed to pay for several invoices for labor and materials that Marquez provided to Tierra. The total amount owed is $32,216.70.
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. § 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).
The Administrative Law Judge may consider ROC’s administrative record.
See Arizona Administrative Code R4-9-118.
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. § 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).
A.R.S. § 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. § 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 A.R.S. § 32-1154(A)(10) as alleged.
11. Based upon Respondent’s violation of the provisions of A.R.S. § 32-1154(A)(10), grounds exist to impose discipline against Tierra’s license.
12. Because A.R.S. § 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 174359 held by Tierra Custom Homes, Inc. until it has provided to the ROC, and the ROC has accepted, documents that establish that it has paid Complainant $32,216.70. in certified funds.
It is further recommended that when and if the ROC receives and accepts Respondent’s evidence that it has paid Complainant $32,216.70 in certified funds, the ROC may close the Complaint in Case No. 2022A-01775.
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 10, 2022.
/s/ Velva Moses-Thompson
Administrative Law Judge
Transmitted electronically to:
Jeffrey Fleetham, Director
Registrar of Contractors