ALJDEC decisions subject to certification as final

2022A-07487-NPC-ROC · Registrar of Contractors · 2023-02-02

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Bright Stone Marble and Granite LLC,

COMPLAINANT

Niksi Construction LLC

License No. ROC 328911,

RESPONDENT

No. 2022A-07487-NPC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: January 19, 2023

APPEARANCES: Miguel Sanchez appeared on behalf of Complainant Bright Stone Marble and Granite LLC. Sina Sabeti appeared via Google Meet on behalf of Niksi Construction LLC. Lydia Solis appeared as the Spanish interpreter.

ADMINISTRATIVE LAW JUDGE: Adam D. Stone

_____________________________________________________________________

FINDINGS OF FACT

On October 19, 2022, the Registrar of Contractors (“ROC”) issued a Notice of Hearing on Contested Case setting the above-captioned matter for hearing on November 28, 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 Niksi Construction LLC on September 15, 2022.

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. 328911 issued by ROC. Sina Sabeti was Respondent’s qualifying party and an officer in the corporation.

Complainant was Bright Stone Marble and Granite LLC.

On or about August 29, 2022, Complainant filed with ROC a complaint against Respondent alleging that Respondent owed Complainant $12,105.00 for unpaid work regarding granite countertop fabrication and installation on a project for which Respondent was going to reside in the home as his personal residence.

After a continuance, the hearing was held on January 19, 2023.

At hearing, Mr. Sanchez testified that he and Mr. Sabeti had worked on many projects in the past three to four years, where Mr. Sabeti was the general contractor. Mr. Sanchez testified that Mr. Sabeti contacted him to fabricate and install granite, and work on a project involving the staircase in Mr. Sabeti’s personal home.

Mr. Sanchez testified further that the original agreement was for him to work on the staircase for $4,600.00, but then, Mr. Sabeti kept adding various projects for Mr. Sanchez to complete. Mr. Sanchez testified that he charged $20.00 per square foot, if the edges did not require customization. If the edges required customization he charged Mr. Sabeti $25.00-$30.00 per square foot.

Mr. Sanchez acknowledged that there were delays on the project, but that it was because Mr. Sabeti would not timely provide the materials. Further, Mr. Sanchez also admitted there were some imperfections in his work but was waiting to discuss the same with Mr. Sabeti, but those discussions never materialized.

Mr. Sabeti testified that based upon their prior business relationship, he requested Mr. Sanchez services on his new home. Mr. Sabeti testified that he walked the entire home with Mr. Sanchez informing him of what he wanted completed. Mr. Sabeti testified that everything was present in the home for Mr. Sanchez to inspect and/or measure, but for the fountain which he provided the layout and measurements. Mr. Sabeti testified that Mr. Sanchez quoted him a price of $4,600.00. While Mr. Sabeti acknowledged that price would be extremely low, he authorized Mr. Sanchez to commence work.

In addition, Mr. Sabeti testified that Mr. Sanchez’s work was subpar, and “the most unprofessional job ever.” Because of this, Mr. Sabeti testified that he would not pay any more monies than the $4,600.00 which had already been paid.

Administrative notice is taken of Respondent’s prior License record on February 2, 2023. Such prior License record reflected that Respondent’s License No. 328911 was first issued on May 15, 20202, and reflected that there was one open complaint, namely the present complaint. Further, the record reflected that there was one resolved/settled case.

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).

At the outset, the tribunal is disappointed that based upon both parties being licensed contractors there was to written agreement regarding the scope of the project and/or the amount charged per square foot. Because of this the only persuasive evidence presented was that $4,600.00 was the cost of the project. Further, there was no dispute that this amount was paid. Further, while this amount may be well under the current market rate, there was no other evidence provided demonstrating some other agreed to amount.

Therefore, the preponderance of the evidence shows that Respondent has not violated section 32-1154(A)(10).

RECOMMENDED ORDER

IT IS RECOMMENDED that the case against Niksi Construction LLC be dismissed.

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.

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-137160-45720000Done this day, February 2, 2023.

/s/ Adam D. Stone

Administrative Law Judge

Transmitted electronically or by mail to:

Jeffrey Fleetham, Director

Registrar of Contractors

Niksi Construction LLC

13951 N Scottsdale Rd #211

Scottsdale, AZ 85254

[email redacted]

Bright Stone Marble and Granite LLC

520 E El Camino Dr

Phoenix AZ 85020-3573

[email redacted]

By: OAH Staff

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001

-137160-45720000