ALJDEC - Licensing
2023A-03375-NPC-ROC · Registrar of Contractors · 2023-11-24
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
R W C Building Products,
COMPLAINANT,
v.
Adanac Builders Corporation
License No. ROC 189034,
RESPONDENT.
No. 2023A-03375-NPC-ROC
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: November 3, 2023
APPEARANCES: Mark Worgonese represented Complainant R W C Building Products. No one appeared on behalf of Adanac Builders Corporation.
ADMINISTRATIVE LAW JUDGE: Velva Moses-Thompson
_____________________________________________________________________
FINDINGS OF FACT
1. On or about September 1, 2022, Complainant R W C Building Products (Complainant) entered into an agreement with Respondent Adanac Builders Corporation (Respondent) wherein Complainant agreed to provide roofing materials to Respondent, in connection with Respondent’s operations as a contractor.
2. Mark Wogernese is an employee of Complainant.
3. Complainant provided materials to Respondent as promised under the contract.
4. From November of 2022 to March of 2023, Complainant issued invoices to Respondent in the total amount of $2,502.00.
5. Respondent failed to pay the invoices.
6. On or about March 17, 2023, Empire filed a complaint with the Arizona Registrar of Contractors (ROC), alleging that Respondent failed to pay for materials provided by Complainant.
7. On April 14, 2023, the ROC issued a Citation against Respondent’s license. Through the Citation, the ROC alleged that Respondent may have violated Arizona Revised Statutes (A.R.S.) 32-1154(A)(10).
8. Respondent filed a timely answer to the Citation. Through the answer, Respondent did not dispute that it owes the amount alleged by Complainant. Respondent stated in its answer, “we have had no cash flow since the end of December.”
9. The matter was referred to the Office of Administrative Hearings for an evidentiary hearing.
10. A hearing was held on November 23, 2023.
11. No one appeared on behalf of Respondent at hearing.
12. At hearing, Mr. Wogernese testified on behalf of Complainant.
Mr. Wogernese explained that Respondent failed to pay for the roofing materials supplied to Respondent by Complainant. Originally, Respondent owed Complainant $2,502.00. However, Respondent made a payment and the balanced has been reduced to $2,377.33.
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).
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.
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. 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.
10. The preponderance of the evidence shows that Respondent violated A.R.S. § 32-1154(A)(10) as alleged.
11. Based upon Respondent’s violation of the provisions of A.R.S. § 32-1154(A)(10), grounds exist to impose discipline against its license.
12. 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 late fees as a condition of keeping its contractor’s license in good standing.
RECOMMENDed order
Based on the foregoing, it is recommended that the ROC suspend license number 189034 held by Adanac Builders Corporation until it has provided to the ROC, and the ROC has accepted, documents that establish that it has paid Complainant $2,377.33 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. 2023A-03375.
In the event of certification of this Administrative Law Judge Decision by the Director of the Office of Administrative Hearings, the effective date of the Order will be 40 days from the date of the certification.
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, November 24, 2023.
/s/ Velva Moses-Thompson
Administrative Law Judge
Transmitted by either mail, e-mail, or facsimile to:
Tom Cole
Registrar of Contractors
[email redacted]
R W C Building Products
[email redacted]
Adanac Builders Corporation
[email redacted]
By: OAH Staff