ALJDEC - Licensing
2022A-08125-NPC-ROC · Registrar of Contractors · 2023-09-27
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
PLS Woodworks, LLC
COMPLAINANT,
v.
Adanac Builders Corporation
License No. ROC 189034,
RESPONDENT.
No. 2022A-08125-NPC-ROC
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: September 7, 2023
APPEARANCES: Kalvin Hairston represented Complainant PLS Woodworks, LLC. Kevin Dandridge represented Respondent Adanac Builders Corporation.
ADMINISTRATIVE LAW JUDGE: Velva Moses-Thompson
_____________________________________________________________________
FINDINGS OF FACT
1. Complainant and Respondent entered into a contract wherein Complainant agreed to provide labor, boom lifts, and the necessary means to install all exterior hardi board plank siding for Respondent, at a Hyatt Hotel in Flagstaff, Arizona.
2. Complainant provided labor and materials under the contract.
3. From October of 2021 to September 26, 2022, Complainant issued invoices to Respondent for the work that it performed pursuant to the agreement.
4. Respondent failed to pay Complainant a total of $60,898.64 for labor and material provided to Respondent.
5. In September of 2022, Complainant filed a complaint against Respondent alleging that Respondent failed to pay an amount in excess of $750 to Complainant for materials provided to Respondent for the Hyatt project.
5. On October 27, 2022, the Registrar of Contractors (Registrar or ROC) issued a Citation against the license of Respondent.
6. Respondent filed a timely answer to the Citation.
7. The matter was referred to the Office of Administrative Hearings for an evidentiary hearing.
8. A hearing was held on September 7, 2023.
9. At hearing, Kalvin Hairston, Complainant’s owner, testified on behalf of Complainant and presented the testimony of Angela M. Fiorentino. Mr. Dandrige testified on behalf of Respondent.
10. Mr. Hairston explained that Respondent did not allege that Complainant performed poor work until months after payment was due. Mr. Hairston explained that despite sending Respondent invoices in the total amount of $60,898.64, Respondent has not paid Complainant. Mr. Hairston explained that Complainant provided labor and materials as promised under the contract. Mr. Hairston disputed that Complainant performed pork work and failed to complete the job.
11. Mr. Dandridge is the General Manager for Respondent. Mr. Dandridge stated that he does not dispute that Respondent owes Complainant $31,194.00. However, Mr. Dandrige disputed that Respondent owes Complainant the remaining balance. Mr. Dandrige contended that several invoices that were billed to Respondent were sold to AmeriFactors, and Respondent is no longer obligated to pay Complainant.
12. Mr. Dandrige further contended that Respondent does not owe Complainant anything more than $31,194.00 because the nails were not long enough to attach to the building, Complainant performed poor work and did not finish the job. Respondent also contended that it owes money first to the supplier, then AmeriFactors, and Respondent would then be required to pay the balance.
13. AmeriFactors purchased invoice numbers 68, 75, 90, and 99 that were previously billed to Respondent. Nonetheless, the testimonial and written evidence established that Complainant is liable to AmeriFacotrs if AmeriFactors is unable to collect from Respondent.
14. Having given due consideration to the foregoing, and the remainder of the evidence of record, the Administrative Law Judge finds Respondent provided insufficient evidence to establish that Complainant performed poor work and failed to complete the project. The evidence presented at hearing shows that Respondent has not paid Complainant a total of $60,898.64 when payment became due for labor and materials provided to 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. 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. A.R.S. § 32-1154(A)(10) includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license “[f]ailure by 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.”
9. 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.
10. The preponderance of the evidence shows that Respondent violated A.R.S. § 32-1154(A)(10) as alleged.
11. Based upon Respondent’s violation of the provisions of A.R.S. § 32-1154(A)(10), grounds exist to impose discipline against Respondent’s license.
12. Because A.R.S. § 32-1154(A)(10) only includes a licensee’s failure to pay for materials or services rendered in connection with the licensee’s operations as a contractor, not late fees, interest, or other consequential or contractual damages, the Administrative Law Judge does not recommend that Respondent be required to pay late fees as a condition of keeping its contractor’s license in good standing.
RECOMMENDed order
Based on the foregoing, it is recommended that the ROC suspend license number 189034 held by Adanac Builders Corporation until it has provided to the Registrar, and the Registrar has accepted, documents that establish that it has paid Complainant $60,898.64 in certified funds.
It is further recommended that when and if the ROC receives and accepts Respondent’s evidence that it has paid Complainant $60,898.64 in certified funds, the ROC may close the Complaint in Case No. 2022A-08125.
Pursuant to A.R.S. § 41-1092.08(I), the licensee may accept the Administrative Law Judge Decision by advising the Office of Administrative Hearings in writing not more than ten (10) days after receiving the decision. If the licensee accepts the Administrative Law Judge Decision, the decision shall be certified as the final decision 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 will be forty (40) days from the date of that certification.
Done this day, September 27, 2023.
/s/ Velva Moses-Thompson
Administrative Law Judge
Transmitted by either mail, e-mail, or facsimile to:
Martín Quezada
Registrar of Contractors
[email redacted]
PLS Woodworks LLC
[email redacted]
Adanac Builders Corporation
[email redacted]
By: OAH Staff