ALJDEC - Licensing
2022A-11429-NPC-ROC · Registrar of Contractors · 2023-05-01
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
Blue Steel Builders, LLC,
COMPLAINANT
v.
HEALTHY HOME FLOORING LLC
License No. ROC 328401,
RESPONDENT
No. 2022A-11429-NPC-ROC
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: April 28, 2023
APPEARANCES: Abel Macias appeared on behalf of Complainant Blue Steel Builders, LLC. No one appeared on behalf of Healthy Home Flooring, LLC.
ADMINISTRATIVE LAW JUDGE: Velva Moses-Thompson
_____________________________________________________________________
FINDINGS OF FACT
1. In or around August of 2022, Complainant Blue Steel Builders, LLC entered into a contract to perform flooring work for Respondent Healthy Home Flooring, LLC, in connection with Respondent’s work as a contractor.
2. The contract included a retainer provision wherein Respondent would
withhold 10 percent of payment for each project. See the Registrar’s Administrative Record, pgs. 14-25. The retainer fee would be paid to Complainant on or after 365 after the Completion date and upon request by Complainant. See id.
3. Complainant performed the flooring work as promised under the contract on four projects: Carlos Rivera, Derek Doughty, Leslie Ruza, and Brad Davidson.
4. On September 12, 2022, Complainant issued Invoice No.1055 to Respondent in the amount of $12,625, for work performed at the Carlos Rivera project. Complainant later revised the amount due for the Carlos Rivera project to $11, 265.25 due to an incorrect amount of square footage used to calculate the total amount. Respondent paid Complainant $7,602.84 for Invoice 1055.
5. On October 9, 2022, Complainant issued Invoice No. 1061 to Respondent in the amount of $250, for work performed at the Derek Doughty project. Respondent did not submit a payment to Complainant for Invoice No. 1061.
6. On October 10, 2022, Complainant issued Invoice No. 1062 to Respondent in the amount of $2,534.84, for work performed at the Leslie Ruza project. Respondent did not submit a payment to Complainant for Invoice No. 1062.
7. On October 11, 2022, Complainant issued Invoice No. 1063 to Respondent in the amount of $3,463.25, for work performed at the Brad Davidson project. Respondent did not submit a payment to Complainant for Invoice No. 1063.
8. On or about December 12, 2022, the Arizona Registrar of Contractors (ROC or Registrar) received a complaint from Complainant alleging that Respondent failed to pay monies in excess of $750 when due for materials and services rendered in connection with Respondent’s work as a contractor.
9. On December 27, 2022, the ROC issued a Citation against Respondent
alleging that Respondent had violated Arizona Revised Statutes (A.R.S.) § 32-1154(A)(10).
10. Respondent filed a timely response to the Citation.
11. The matter was referred to the Office of Administrative Hearings for
an evidentiary hearing.
12. On January 27, 2023, the Arizona Registrar of Contractors (ROC or
Registrar) issued a Notice of Hearing setting the above-captioned matter for hearing on March 6, 2023, by the Office of Administrative Hearings.
13. The Notice of Hearing shows that the hearing was set to consider the
charges made in the Citation and Complaint.
14. On February 23, 2023, Administrative Law Judge Tammy Eigenheer issued a notice to both parties continuing the hearing date for April 28, 2023 at 9:00 a.m.
14. A hearing was held on April 28, 2023.
15. Respondent did not request to appear telephonically and did not request
that the hearing be continued. Although the start of the duly noticed hearing was delayed fifteen minutes to allow Respondent additional time, Respondent did not appear, through an authorized member, employee, or attorney, and did not contact OAH to request that the start of the hearing be further delayed.
16. At hearing, Complainant’s owners, Abel Macias and Yamileth Heras
testified on behalf of Complainant. Mr. Macias explained that Respondent performed flooring work on the four projects as agreed under the contract. Ms. Heras explained that Respondent has failed to pay the balance owed. Ms. Heras also stated that Complainant agreed to give Respondent a retainer fee. Ms. Heras stated that Respondent claimed that it did not pay Complainant because Complainant caused damages at the project. However, Ms. Heras and Mr. Macias explained that they were not aware of any damage to the projects.
17. The evidence presented at hearing shows that Respondent failed to pay for services rendered by Complainant in connection with Respondent’s work as a contractor. The total amount for the four projects is equal to the sum of $11,265.25, $250, $2,534.84, and $3,463.25. The total amount of the four projects is $17,513.34. The retention fee is equal to 10% of the total amount of the projects: $1,751.33. The total amount for the four projects in the amount $17,513.34, less the payment of $7,602.84, and the retention fee of $1,751.33, is $8,159.17. The total amount owed for the work performed on the four projects is $8,159.17.
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).
The Administrative Law Judge may consider the ROC’s administrative
record. See A.A.C. R4-9-118.
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).
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. The preponderance of the evidence shows that complaint, Respondent violated A.R.S. § 32-1154(A)(10) as alleged.
10. 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.
RECOMMENDed order
Based on the foregoing, it is recommended that the ROC suspend license number 328401 held by HEALTHY HOME FLOORING LLC until it has provided to the ROC, and the ROC has accepted, documents that establish that it has paid Complainant $8,159.17 in certified funds.
It is further recommended that when and if the ROC receives and accepts Respondent’s evidence that it has paid Complainant in certified funds, the ROC may close the Complaint in Case No. 2022A-11429.
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, May 1, 2023.
/s/ Velva Moses-Thompson
Administrative Law Judge
Transmitted by either mail, e-mail, or facsimile to:
Martín Quezada, Director
Registrar of Contractors
Tom Moring, Esq.
[email redacted]
HEALTHY HOME FLOORING LLC
[email redacted]
Martín Quezada
Registrar of Contractors
c/o Legal Department
1700 W. Washington Street, Suite 105
Phoenix, AZ 85007
[email redacted]
Blue Steel Builders, LLC
24654 N Lake Pleasant Parkway Ste. 103-518
Peoria, AZ 85383
[email redacted]