ALJDEC decisions subject to certification as final

2022A-04117-NPC-ROC · Registrar of Contractors · 2022-08-31

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Builder Services Group Inc.,

COMPLAINANT.

North Construction LLC,

License No. ROC 305312,

RESPONDENT.

No. 2022A-04117-NPC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: August 12, 2022 at 9:00 a.m.

APPEARANCES: Attorney Angela L. Cooner represented Builder Services Group Inc. (Complainant); Complainant’s Division Manager Mark Long appeared as well as Kayleigh Hooten from Accounts Receivable. No person appeared on behalf of North Construction, LLC. (Respondent)

ADMINISTRATIVE LAW JUDGE: Kay Abramsohn

_____________________________________________________________________

FINDINGS OF FACT

1. In November and December of 2021, Complainant performed work under a contractual agreement with Respondent, wherein Complainant agreed to provide and install insulation in connection with Respondent’s construction projects.

2. Complainant’s invoices to Respondent for the work performed were not addressed by Respondent.

3. On April 14, 2022, Complainant sent to Respondent a demand letter and summary statement of the past due invoice amounts totaling $7,287.98.

4. On May 17, 2022, Complainant filed a Non-Payment Complaint Form (Complaint) with the Arizona Registrar of Contractors (ROC) alleging that Respondent failed to pay for the performed services.

5. On June 7, 2022, the ROC issued a Citation against Respondent’s license. Through the Citation, the ROC alleged that Respondent may have violated Arizona Revised Statutes (A.R.S.) 32-1154(A)(10).

6. The Citation further specified that if Respondent failed to file an answer by June 22, 2022, the failure to do so may be deemed to be an admission of the alleged act(s) with the result that ROC might suspend or revoke Respondent’s license.

7. On June 23, 2022, Respondent filed a response, indicating that it had been in contact with Complainant with the intent to resolve the matter directly with Complainant.

8. The matter was subsequently referred to the Office of Administrative Hearings for an evidentiary hearing.

9. A hearing was noticed for August 12, 2022 and the Tribunal issued its ORDER for a virtual hearing.

10. On August 11, 2022, Complainant filed a last-minute motion to continue the matter indicating, essentially, that they needed more preparation time; the motion was not granted by the Administrative Law Judge.

11. On the day of the hearing and prior to convening the virtual hearing, Complainant advised the Tribunal that it was withdrawing the motion because Complainant was prepared to proceed.

12. At the time of the virtual hearing, only Complainant was present.

13. At the time of the virtual hearing, and for a minimum of 15 minutes thereafter, Respondent did not access the virtual link or call in through the provided telephonic access number.

14. Complainant withdrew its motion on the record. The hearing convened and concluded on August 12, 2022.

15. At hearing, Complainant recounted its work performance and the issuance of invoices which remained unaddressed by Respondent, confirming the allegations and information provided in the Complaint.

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. A.A.C. 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).

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 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. § 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. 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.

9. The preponderance of the evidence shows that Respondent violated A.R.S. § 32-1154(A)(10) as alleged. Based upon Respondent’s violation of the provisions of A.R.S. § 32-1154(A)(10), grounds exist for the ROC to impose discipline against Respondent’s license.

RECOMMENDed order

Based on the foregoing, it is recommended that the ROC suspend Respondent’s ROC license number 305312 until Respondent has provided to the ROC, and the ROC has accepted, documentation that establishes that Respondent has paid Complainant $7,287.98 in certified funds.

It is further recommended that when and if the ROC receives and accepts Respondent’s documentation that it has paid Complainant in certified funds, the ROC may close the Complaint in Case No. 2022-04117.

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.

-54864001

001

-137160-45720000Done this day, August 31, 2022.

/s/ Kay Abramsohn

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors

By Miranda Alvarez

Legal Secretary