ALJDEC - Licensing
2023A-00651-NPC-ROC · Registrar of Contractors · 2023-05-15
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
4K Aluminum Inc,
COMPLAINANT
v.
Spartan Shade Systems, LLC
License No. ROC 336822,
RESPONDENT
No. 2023A-00651-NPC-ROC
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: April 25, 2023
APPEARANCES: Keith Jackson appeared on behalf of Complainant 4K Aluminum, Inc. Ruben Ramos Minus appeared on behalf of Respondent Spartan Shade Systems, LLC.
ADMINISTRATIVE LAW JUDGE: Velva Moses-Thompson
_____________________________________________________________________
FINDINGS OF FACT
On March 23, 2023, the Registrar of Contractors, (Registrar), issued a Notice of Hearing setting the above-captioned matter for hearing on April 25, 2023.
Respondent Spartan Shade Systems, LLC (Respondent) holds license
number 336822 issued by the Registrar.
The Notice of Hearing shows that the hearing was set to consider the charges made in the Citation and complaint.
Through the Citation, the Registrar alleges that Respondent may have violated Arizona Revised Statutes (A.R.S.) § 32-1154(A)(10). The citation shows that if the Administrative Law Judge finds that any of the alleged charges are valid, the Registrar may suspend or revoke Respondent’s license.
On or about October 27, 2022, Complainant agreed to supply 4K Aluminum material to Respondent in connection with Respondent’s activities as a contractor.
6. In July 2022, and October – December of 2022, Complainant issued invoices to Respondent for material that it provided to Respondent under the agreement. The total amount of the invoices was $217,715.00, including interest and fees. See the Registrar’s administrative record, pgs. 60-78. The amount owed without interest and fees was $209,494.85. See id at pg. 60.
7. Respondent failed to pay a total of $217,715.
8. Complainant filed a complaint with the Registrar alleging that Respondent failed to pay for materials provided when due under the contract.
9. Respondent filed a timely answer to the Citation.
10. The matter was referred to the Office of Administrative Hearings for an evidentiary hearing.
11. On April 25, 2023, a hearing was held.
12. At hearing, Keith Jackson and Kim Nguyen testified on behalf of
Complainant. Ruben Ramos Minus testified on behalf of Respondent.
13. Mr. Jackson and Ms. Nguyen explained that Respondent failed to pay for
materials supplied to Respondent in the amount of $217,715. Mr. Jackson stated that Respondent profited greatly from ordering large amounts of material from Respondent.
14. Mr. Minus explained that he was not disputing that Respondent owed Complainant $217,715. Mr. Minus stated that Respondent could not afford to pay the
whole amount at one time, but would agree to a payment plan.
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 Registrar’s administrative
record. See ARIZ. ADMIN. CODE § 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).
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.
9. 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.”
10. 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.
11. In this case, Mr. Minus does not dispute that Respondent owes Complainant $217,715.00. Mr. Minus contended that he cannot afford to pay the amount owed. However, Mr. Minus failed to provide supporting written evidence to establish that Respondent lacked the capacity to pay. Mr. Minus failed to establish that that Respondent had not received “sufficient monies as payment for the particular construction work project or operation for which the services or materials were rendered or purchased.” See A.R.S. § 32-1154(A)(10).
12. The preponderance of the evidence shows that Respondent violated A.R.S. § 32-1154(A)(10) as alleged.
13. 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.
14. 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 the amount of $217,715.00 because it includes interest and a fee. The Administrative Law Judge recommends that Respondent be required to pay $209,494.85, the amount owed without interest and fees.
RECOMMENDed order
Based on the foregoing, it is recommended that the Registrar suspend license number 336822 held by Spartan Shade Systems, LLC until it has provided to the Registrar, and the Registrar has accepted, documents that establish that it has paid Complainant $209,494.85 in certified funds.
It is further recommended that when and if the Registrar receives and accepts Respondent’s evidence that it has paid Complainant in certified funds, the Registrar may close the Complaint in Case No. 2023A-00651.
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 15, 2023.
/s/ Velva Moses-Thompson
Administrative Law Judge
Transmitted by either mail, e-mail, or facsimile to:
Martín Quezada, Director
Registrar of Contractors
[email redacted]
4K Aluminum Inc
[email redacted]
Spartan Shade Systems, LLC
[email redacted]
By: OAH Staff