ALJDEC - Licensing
2022A-10041-NPC-ROC · Registrar of Contractors · 2023-04-19
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
Terrell Phabian Elite Flagging Solutions
LLC,
COMPLAINANT,
v.
Southwest Barricades LLC,
License No. ROC 241648,
RESPONDENT.
No. 2022A-10041-NPC-ROC
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: March 15, 2023 and March 30, 2023.
APPEARANCES: Owner Terrell Phabian appeared on behalf of Terrell Phabian Elite Flagging Solutions LLC (Complainant). Desirae Pandolfo appeared on behalf of Southwest Barricades LLC (Respondent), ROC License 241648.
ADMINISTRATIVE LAW JUDGE: Kay Abramsohn
FINDINGS OF FACT
1. Complainant supplied flagmen crews needed by Respondent at various construction projects. Complainant had invoiced Respondent on the projects; however, Complainant had not yet been paid. One particular road project at issue was Job #94009 in Yavapai County (Yavapai).
2. In November 2022, the Arizona Registrar of Contractors (Registrar) received a Non-Payment Complaint Form (Complaint) from Complainant alleging that Respondent had thirty (30) outstanding invoice balances as documented on a computer listing, an Accounts Receivables Aging Report, and an October 21, 2022 Demand Letter. The total amount due was $21,607.25. See Hearing Packet.
3. On January 9, 2023, 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 January 17, 2023, Respondent informed the Registrar that Respondent had not paid Complainant because Respondent had been backcharged by VSS (the Yavapai county road project contractor) for late appearances/performance of flaggers. Respondent indicated that it had not been paid by VSS and, therefore, were not able to pay Complainant.
5. There was some communication between the parties; however, the matter was not resolved informally between the parties.
6. On February 8, 2023, 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, Respondent explained, and presented documentation, how they had followed up with VSS about the $41,300.00 backcharges which consisted of the VSS-experienced “costs” with regard to various equipment and materials “delayed” to be in use on certain days due to flagging issues.
8. At hearing, Complainant indicated that he had not been informed at anytime that his crew of flaggers had been late to the Yavapai project. Complainant further noted that the invoice for the Yavapai project was in the amount of $3,606.25 and that Respondent owed Complainant money on multiple other jobs as were listed in the Complaint. Complainant argued that the twenty-nine (29) other invoices had nothing to do with the Yavapai project and should have been paid.
9. Respondent indicated that it had digital GPS documentation of its provision of materials and services to VSS. Complainant believed he might had text messages from his crews as to arrival/departure times. Both parties believed that it might be possible for Respondent to get back to VSS with more documentation for purposes of adjustments to VSS backcharges to Respondent.
10. Respondent indicated that it was forwarding the backcharged amount “to each company” that was late to the Yavapai project.
11. Since the hearing sessions, 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 April 19, 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 flagging crews, 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.
While the hearing record does not contain any of Respondent’s receivables records, the hearing record appears to demonstrate that Respondent may not have received sufficient monies in payment for the Yavapai project for which Respondent contracted Complainant’s services. Thus, the hearing record clearly demonstrated that 29 of 30 of Complainant’s invoices to Respondent remained unpaid in violation of the Ariz. Rev. Stat. § 32-1154(A)(10); the amount unpaid in violation of the statute calculates to be $18,001.00.
Based on the foregoing, the Administrative Law Judge concludes that Respondent’s License No. ROC 241648 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 241648 is suspended until the Registrar receives and accepts written verification from Complainant that Respondent has paid to Complainant, in certified funds, the $18.001.00, which amount represents payment in full on the unpaid 29 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 241648 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, April 19, 2023.
/s/ Kay A. Abramsohn
Administrative Law Judge
Transmitted electronically this day, April 19, 2023, to:
Martín Quezada, Registrar
Registrar of Contractors
[email redacted]
John Zyadet
Southwest Barricades LLC
ATTN: Abby Baiz, Kris Smith
[email redacted]
[email redacted]
Terrell Phabian Elite Flagging Solutions LLC
[email redacted]
By OAH Staff