ALJDEC decisions subject to certification as final
2022A-08508-NPC-ROC · Registrar of Contractors · 2022-12-28
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
Roddy Dale Riggs Advanced Spray Foam LLC,
COMPLAINANT,
v.
Burr Kennedy Construction LLC,
License No. ROC 218171,
RESPONDENT.
No. 2022A-08508-NPC-ROC
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: December 8, 2022.
APPEARANCES: Member and Qualifying Party Roddy Dale Riggs appeared on behalf of Roddy Dale Riggs Advanced Spray Foam LLC (Complainant). No person appeared on behalf of Burr Kennedy Construction LLC (Respondent).
ADMINISTRATIVE LAW JUDGE: Kay Abramsohn
_____________________________________________________________________
FINDINGS OF FACT
1. In the past, Complainant has supplied and installed material needed by Respondent at various homes. However, with respect to a March 14, 2022 project [Project 21153 - Clint home], Complainant has not yet been paid on Invoice #1062.
2. The Arizona Registrar of Contractors (Registrar) received a Non-Payment Complaint Form (Complaint) from Complainant alleging that Respondent had failed to pay for material supplied as specified on Invoice #1062 in the amount of $7,788.53. See Hearing Packet, Complaint form.
3. On October 11, 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 October 24, 2022, Respondent informed the Registrar that he did not contest owing the money but that he did not have the money at this time. Respondent stated that he had built a home for a couple who did not pay him more than $60,000.00 still owed and he was pursuing them for the balance.
5. The matter was not resolved informally by the parties and was referred to the Office of Administrative Hearings for an evidentiary hearing.
6. On November 2, 2022, the Registrar issued a Notice of Hearing (“Notice”) setting the matter for administrative hearing on December 8, 2022; 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. On November 16, 2022, the Tribunal issued its ORDER providing the parties with a Virtual link and telephone number for the hearing.
8. At the time of the hearing and for nearly a half-hour thereafter, Respondent failed to appear.
9. Complainant indicated that Respondent had stopped contacting Complainant with regard to the outstanding invoice. See Complainant Exhibit 2.
10. Complainant received documentation from the homeowner that Respondent’s draw covering the insulation had been made to Respondent. See Complainant’s Exhibit 3.
11. Since the date of the hearing, and as of the date of this recommended decision Complainant has not informed the Tribunal of a resolution by the parties of the instant matter.
12. Administrative notice is taken of Respondent’s license history. According to the Registrar’s website on December 28, 2022, the instant case is one of two open cases, and Respondent’s License No. ROC 218171 is currently suspended for lack of a bond.
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 March 14, 2022 Invoice #1062 from Complainant for materials and installation, Respondent has not made 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 218171 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 218171 is suspended until the Registrar receives and accepts written verification from Complainant that Respondent has paid to Complainant, in certified funds, the $7,788.53, which amount represents payment in full on Invoice #1062.
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 218171 will not be suspended and this case will be closed.
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, December 28, 2022.
/s/ Kay A. Abramsohn
Administrative Law Judge
Transmitted electronically to:
Jeffrey Fleetham, Registrar
Registrar of Contractors
c/o Legal Department
[email redacted]
Burr Kennedy Construction LLC
[email redacted]
Roddy Dale Riggs Advanced Spray Foam LLC
[email redacted]
By Miranda Alvarez
Legal Secretary