ALJDEC - Licensing
2022A-07207-NPC-ROC · Registrar of Contractors · 2023-02-08
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
ThermAir Systems LLC,
COMPLAINANT,
v.
Vic's Refrigeration Concepts LLC,
License No. ROC 329935,
RESPONDENT.
No. 2022A-07207-NPC-ROC
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: November 29, 2022, with record held open until January 20, 2023.
APPEARANCES: Owner Jeff Phillippe appeared on behalf of ThermAir Systems LLC (Complainant). Victor Calderon appeared on behalf of Vic’s Refrigeration Concepts LLC (Respondent).
ADMINISTRATIVE LAW JUDGE: Kay Abramsohn
_____________________________________________________________________
FINDINGS OF FACT
1. Complainant has supplied material needed by Respondent at various projects, noting among them, Big O Tires and Sprouts. Complainant had invoiced Respondent on the projects; however, while one invoice had been paid in January 2022, with respect to multiple other invoices, Complainant had not yet been paid.
2. In August of 2022, the Arizona Registrar of Contractors (Registrar) received a Non-Payment Complaint Form (Complaint) from Complainant alleging that Respondent had outstanding invoice balances as documented on an attached Open Receivables report. The total amount due was $25,534.12. See Hearing Packet, Complaint form.
3. On September 16, 2022, the Registrar issued a Citation against Respondent’s license for the alleged violation of Ariz. Rev. Stat. § 32-1154 (A)(10). The Citation states that if an Administrative Law Judge finds that the charge is valid, the Registrar may suspend or revoke Respondent’s license.
4. By email dated September 29, 2022, Respondent informed the Registrar that they had no idea as to the balances, stating in pertinent part:
[I’m] writing to see how we can set up a payment plan we had no idea until April’s email we owed so much it was all going to Jason B. email which he quit last year in Sept.
5. The parties were in contact with each other and arranged a payment plan, with Complainant accepting post-dated checks; Complainant received three payments totaling $9,000.00. However, the matter was not completely resolved informally between the parties.
6. On October 25, 2022, the Registrar issued a Notice of Hearing (“Notice”) setting the matter for administrative hearing; Notice was issued to the parties by mail and email. The Notice shows that the hearing was set to consider the charges made in the Citation and Complaint.
7. At hearing, Complainant indicated that they had been working with “Jason Buchanan” at Respondent’s offices. Complainant indicated that Respondent would get the quote on the project and then provide a Purchase Order to Complainant along with an agreement on the payment. At the time of the hearing, the remaining unpaid amount was $16,534.12.
8. At hearing, Respondent indicated that “Jason” had left the company and that no one was getting Complainant’s emails about invoices. Respondent further indicated that they have a new manager for the HVAC work projects. Respondent did not dispute the monies were due and acknowledged that it had been paid on the projects.
9. At the time of the hearing, the parties informally discussed how to resolve the matter and, in good faith, the parties came to a verbal arrangement for a payment in November and a final payment by December 16, 2022.
10. The administrative hearing record was held open until January for the opportunity of Complainant to receive the payments and withdraw the Complaint.
11. Since the date of the hearing, and as of the held-open date, Complainant has not informed the Tribunal of a resolution or a withdrawal of the Complaint.
12. Administrative notice is taken of Respondent’s license history. According to the Registrar’s website on February 8, 2023, the instant case is the only open case.
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. Ariz. Admin. Code § R2-19-119.
This matter lies within the Registrar’s jurisdiction. Additionally, Ariz. Rev. Stat. § 32-1154(B)(3) provides that the Registrar may temporarily suspend, with or without conditions, and may permanently revoke “any or all licenses” if the licensee is guilty of or commits any of the acts or omissions set forth in Ariz. Rev. Stat. § 32-1154(A).
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).
Ariz. Rev. Stat. § 32-1154(A) provides that:
The holder of a license or any person named on a license pursuant to this chapter may 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 $750 when due for materials or services rendered in connection with the licensee's operations as a contractor unless the licensee proves that the licensee lacks the capacity to pay and has not received sufficient monies as payment for the particular construction work project or operation for which the services or materials were rendered or purchased.
A preponderance of the hearing record and evidence provided for consideration in this matter demonstrated that, with regard to the outstanding balance on the invoices from Complainant for materials and installation, Respondent has not made full payment to Complainant in violation of Ariz. Rev. Stat. § 32-1154(A)(10) as alleged in Complainant’s Complaint and in the Registrar’s CITATION.
Based on the foregoing, the Administrative Law Judge concludes that Respondent’s License No. ROC 329935 is subject to discipline.
RECOMMENDED ORDER
IT IS ORDERED that on the effective date of the Registrar’s Final Administrative Decision and Order, Respondent’s License No. ROC 329935 is suspended until the Registrar receives and accepts written verification from Complainant that Respondent has paid to Complainant, in certified funds, the $16,534.12, which amount represents payment in full on the remaining invoices.
IT IS FURTHER ORDERED that if the Registrar receives and accepts such proof of payment on or before the effective date of the Registrar’s Final Administrative Decision and Order, Respondent’s License No. ROC 329935 will not be suspended and this case will be closed.
Pursuant to A.R.S. § 41-1092.08(I), the licensee may accept the Administrative Law Judge's written decision by so advising the Office of Administrative Hearings in writing not more than ten days after receiving the decision. If the licensee accepts the Administrative Law Judge's written decision, that Administrative Law Judge Decision shall be certified as the final decision in this matter by the Office of Administrative Hearings.
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 forty days after the date of that certification.
Done this day, February 8, 2023.
/s/ Kay A. Abramsohn
Administrative Law Judge
Transmitted electronically this day, February 8, 2023, to:
ThermAir Systems LLC
2521 E. Birchwood Ave.
Mesa, AZ 85202
[email redacted]
Vic's Refrigeration Concepts LLC
8135 N 83rd Ave
Peoria, AZ 85345-8033
[email redacted]
Martín Quezada, Registrar
Registrar of Contractors
By: OAH staff