ALJDEC decisions subject to certification as final

2022A-06478-NPC-ROC · Registrar of Contractors · 2023-02-02

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Consolidated Electrical Distributors, Inc.,

COMPLAINANT,

4 Daughters Electric LLC,

License No. ROC 323958,

RESPONDENT.

No. 2022A-06478-NPC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING, VIRTUAL: January 13, 2023

APPEARANCES: Kyle Yanke, Credit Manager, represented Consolidated Electrical Distributors, Inc. (“Complainant”). No person appeared on behalf of 4 Daughters Electric LLC (“Respondent”).

ADMINISTRATIVE LAW JUDGE: Kay Abramsohn

_____________________________________________________________________

FINDINGS OF FACT

1. Respondent had executed a credit agreement with Complainant.

2. Complainant supplied materials to Respondent on four occasions occurring in March and April of 2022. Complainant’s invoices in the hearing record document the materials and dates the materials were provided to Respondent.

3. After Complainant was not paid on the four subject invoices, Complainant filed its Non-Payment Complaint Form (“Complaint”) with the Arizona Registrar of Contractors (“ROC”) alleging that Respondent failed to pay for the performed services on the four specified invoices, which total an amount of monies unpaid of $38,216.29.

4. Through its September 1, 2022 Citation and Complaint, the ROC alleged that Respondent may have violated Arizona Revised Statutes (“A.R.S.”) 32-1154(A)(10). The Citation further specified that if Respondent failed to file an answer, 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.

5. Respondent’s September 7, 2022 answer to the ROC Citation and Complaint stated, in pertinent part, that after a bookkeeper was fired, it was discovered that she had not been paying Respondent’s invoices. Further, Respondent noted that when he reached out to Complainant, he was told the matter was in their legal department. Respondent acknowledged the debt and wrote that he wanted to settle the matter informally.

6. However, the matter was not resolved informally and proceeded to administrative hearing.

7. At the first hearing session [in November 2022], the parties attempted to come to an agreement which would resolve the matter; the agreement involved payments by certain dates/months.

8. The Tribunal, hearing nothing from the parties regarding a completed settlement arrangement, reset the matter for an administrative hearing in January 2023.

9. Although the Tribunal waited over ten minutes for Respondent to access the hearing, Respondent failed to appear to present any evidence.

10. At hearing, Mr. Yanke testified that, although the parties had executed a written agreement regarding the past-due balance, Complainant had not received any payment/payments. Mr. Yanke noted that the balance due was now $40,719.72.

11. As of the date of this decision, the ROC website indicates that this case is the only open case for Respondent.

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 (“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. 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 No. ROC 323958 until Respondent has provided to the ROC, and the ROC has accepted, documentation that establishes that Respondent has paid Complainant $38,216.29 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. 2022-06478.

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, February 2, 2023.

/s/ Kay Abramsohn

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors

[email redacted]

Kyle Yanke

[email redacted]

4 Daughters Electric LLC

[email redacted]

By: OAH Staff