ALJDEC decisions subject to certification as final

2022A-08631-NPC-ROC · Registrar of Contractors · 2023-01-26

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Rick The Plumber Inc,

COMPLAINANT

Zona Construction LLC

License No. ROC 323433,

RESPONDENT

No. 2022A-08631-NPC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: January 12, 2023

APPEARANCES: Rick Gorman appeared via Google Meet on behalf of Complainant Rick The Plumber Inc. John Cotton appeared via Google Meet on behalf of Zona Construction LLC.

ADMINISTRATIVE LAW JUDGE: Adam D. Stone

_____________________________________________________________________

FINDINGS OF FACT

On December 6, 2022, the Registrar of Contractors (“ROC”) issued a Notice of Hearing on Contested Case setting the above-captioned matter for hearing on January 12, 2023, 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 Zona Construction LLC on November 2, 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. 323433 issued by ROC. John Cotton was Respondent’s qualifying party and an officer in the corporation.

Complainant is Rick The Plumber Inc.

On or about October 18, 2022, Complainant filed with ROC a complaint against Respondent alleging that Respondent owed Complainant $14,650.00 for unpaid work and materials for installing a water heater, water softener system, a reverse osmosis system, several toilets and other rough plumbing on a project for which Respondent was the general contractor.

At hearing, Mr. Gorman testified that on July 27, 2022, Respondent needed help with the plumbing work, and they agreed on a price and what equipment was to be installed. Mr. Gorman stated while there was a little delay in obtaining the water heater but the job was mostly completed. Mr. Gorman testified that the master bathroom was not completed, nor was the sink in the laundry room installed. Therefore, Mr. Gorman testified that he was seeking $13,641.39 as payment in full.

Mr. Cotton testified that his client was looking for a specific water heater and water filtration system. Mr. Cotton testified that there was no drip pan underneath the water heater and that the homeowners were upset with the quality of work performed by Complainant, and requested that Complainant leave the project. In addition, Mr. Cotton testified that the water softener was only partially hooked up, and did not want the water softener. Further, the customer also did not want the reverse osmosis system. Mr. Cotton testified that he requested that Complainant take those items back, but he refused. Finally, Mr. Cotton testified that he believed a fair price was $4,500.00 for the work performed and the equipment that was installed and operational.

Administrative notice is taken of Respondent’s prior License record on January 26, 2023. Such prior License record reflected that Respondent’s License No. 323433 was first issued on February 1, 2019, and reflected that there was one open complaint, namely the present complaint.

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).

The preponderance of the evidence shows that Respondent owes Complainant $13,641.39 for the work performed and the equipment installed. Respondent’s client changed its mind once the water softener and reverse osmosis system were delivered and installed, but that was not Complainant’s fault. Complainant provided the equipment and did the work as was agreed and it deserves to be paid for the same. It is unclear however, why Mr. Gorman would not give Mr. Cotton the receipts for the items so Mr. Cotton could try to recoup the cost for the same, but that does not excuse Respondent’s non-payment. Therefore, the preponderance of the evidence shows that Respondent has violated section 32-1154(A)(10).

Respondent’s license should be suspended until it pays to Complainant $13,641.39.

RECOMMENDED ORDER

IT IS RECOMMENDED that Zona Construction’s license number 323433 be suspended until the Registrar receives proof that it has paid to Rick The Plumber Inc. $13,641.39.

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, January 26, 2023.

/s/ Adam D. Stone

Administrative Law Judge

Transmitted electronically or by mail to:

Jeffrey Fleetham, Director

Registrar of Contractors

Zona Construction LLC

[email redacted]

Rick Gorman

[email redacted]

By: OAH Staff

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001

-137160-45720000