ALJDEC decisions subject to certification as final

2022A-04302-NPC-ROC · Registrar of Contractors · 2022-10-03

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

CFA Cabinetry LLC,

COMPLAINANT

The Bearded Builder LLC

License No. ROC 334117,

RESPONDENT

No. 2022A-04302-NPC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: September 21, 2022

APPEARANCES: Ann Marie Rolfe appeared via Google Meet on behalf of Complainant CFA Cabinetry LLC.

ADMINISTRATIVE LAW JUDGE: Adam D. Stone

_____________________________________________________________________

FINDINGS OF FACT

On August 10, 2022, the Registrar of Contractors (“ROC”) issued a Notice of Hearing on Contested Case setting the above-captioned matter for hearing on September 21, 2022, at the Office of Administrative Hearings.

The Notice of Hearing shows that the hearing was being conducted on the charges made in the complaint and citation that were served on Respondent, The Bearded Builder LLC on July 8, 2022.

On or about August 10, 2022, the undersigned Administrative Law Judge issued an Order to the parties with the Google Meet information.

Through the citation and Notice of Hearing, ROC alleges that Respondent may have violated Ariz. Rev. Stat. section 32-1154(A)(10).

Respondent holds License No.334117 issued by ROC. Shabse Zushe Wernick was Respondent’s qualifying party and an officer in the corporation.

Complainant is CFA Cabinetry LLC.

Complainant sold to Respondent cabinets used by Respondent in connection with its license.

On or about May 23, 2022, Complainant filed with ROC a complaint against Respondent alleging that Respondent owed Complainant $7,157.01.

The hearing was convened on September 21, 2022. Although the start of the hearing was delayed 15 minutes, Respondent did not appear through an authorized member, employee, or attorney. Consequently, Respondent did not present any evidence to defend its license.

The copy of the Notice of Hearing that the Registrar mailed to Respondent at its address of record, and the Google Meet order issued by the tribunal was reasonable and Respondent is deemed to have received notice of the hearing. A.R.S. §§ 41-1092.04 and 41-1092.05(D).

Ms. Rolfe testified that on April 13, 2022, Respondent ordered and received two set of cabinets, one in the amount of $6,970.85 and one in the amount of $186.16.

Ms. Rolfe testified that Respondent issued check number 141 in the amount of $7,157.01. Ms. Rolfe testified that this check was returned from the bank for insufficient funds.

Next, Ms. Rolfe testified that after failing to hear from Respondent, Mr. Wernick e-mailed her on July 25, 2022, requesting a payment plan. Ms .Rolfe agreed to allow Respondent to satisfy the debt within 60 days, which would have been September 19, 2022. Ms. Rolfe testified however, that to date, there has been no further contact nor payment from Respondent.

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).

Among the grounds for suspension or revocation of a contractor’s license is a “[f]ailure by [the] 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.” Ariz. Rev. Stat. § 32-1154(A)(10).

The preponderance of the evidence shows that Respondent owes Complainant more than $750 for the materials purchased in connection with Respondent’s operations as a contractor. The evidence shows that Respondent received the cabinets and paid for the same with a check for insufficient funds, and has failed to pay since mid-April 2022. Further, Respondent has failed to provide any affirmative defense to the Complaint. Therefore, the preponderance of the evidence shows that Respondent has violated section 32-1154(A)(10).

Respondent’s license should be suspended until it pays to Complainant $7,157.01

RECOMMENDED ORDER

IT IS RECOMMENDED that The Bearded Builder LLC.’s license number 334117 be suspended until the Registrar receives proof that it has paid to CFA Cabinetry, LLC $7,157.01.

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 twenty days after the date of that certification.

-54864001

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-137160-45720000Done this day, October 3, 2022.

/s/ Adam D. Stone

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors

CFA Cabinetry LLC

[email redacted]

The Bearded Builder LLC

[email redacted]

By Miranda Alvarez

Legal Secretary -54864001

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-137160-45720000