ALJDEC - Licensing
2023A-09261-NPC-ROC · Registrar of Contractors · 2024-01-24
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
Jandy Electric LLC,
COMPLAINANT
v.
North Star Pools LLC
License No. ROC 302626,
RESPONDENT
No. 2023A-09261-NPC-ROC
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: January 9, 2024
APPEARANCES: Juan Aldo Nunez appeared via Google Meet on behalf of Complainant Jandy Electric LLC. Robert Kempton appeared via Google Meet on behalf of North Star Pools LLC.
ADMINISTRATIVE LAW JUDGE: Adam D. Stone
EXHIBITS ADMITTED INTO EVIDENCE: Complainant’s Exhibits 1-8 and Respondent’s Exhibits 1-9 were admitted into evidence.
_____________________________________________________________________
FINDINGS OF FACT
On November 30, 2023, the Registrar of Contractors (“ROC”) issued a Notice of Hearing on Contested Case setting the above-captioned matter for hearing on January 9, 2024 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 North Star Pools LLC on August 31, 2023.
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. 302626 issued by ROC. Robert Kempton is Respondent’s qualifying party.
Complainant is Jandy Electric LLC.
Complainant performed work on pools for Respondent in connection with its license.
On August 31, 2023, Complainant filed with ROC a complaint against Respondent alleging that Respondent owed Complainant $29,285.00.
At hearing, Mr. Nunez testified that he worked for Casther Electric LLC (“Casther”) when the jobs were performed for Respondent. At some point, while Casther was working on the “Hernandez Residence”, Mr. Nunez and Casther had a falling out and Mr. Nunez started his own company, namely Jandy Electric LLC, and was licensed by ROC on March 23, 2023.
Mr. Nunez testified that there were four invoices for jobs which went unpaid to Casther. These were, the “Barkan Residence”, “Hale Residence”, “Carroll Residence”, and the above mentioned, “Hernandez Residence”.
Mr. Nunez testified that he and Casther had an agreement where Complainant would “inherit” the projects from Respondent and therefore demanded to be paid for the work performed which amounted to $29,285.00. Further, Mr. Nunez testified that Complainant only performed work on part of the “Hernandez Residence” while the other jobs were completed while Mr. Nunez was a part of Casther.
Mr. Kempton testified that the only work that Complainant completed was the remaining work at the “Hernandez Residence.” Mr. Kempton testified he owed Complainant $5,590.00 for the work performed on that project, while the remaining of that project and the others were to be paid to Casther.
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 more than $750.00 for materials purchased in connection with Respondent’s operations as a contractor. Mr. Kempton testified that he owed Complainant $5,590.00 for the work performed on the “Hernandez Residence” and did not provide a valid legal defense for his failure to do so.
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 $5,590.00.
RECOMMENDED ORDER
IT IS RECOMMENDED that North Star Pools LLC’s license number 302626 be suspended until the Registrar receives proof that it has paid to Jandy Electric LLC $5,590.00.
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, January 24, 2024.
/s/ Adam D. Stone
Administrative Law Judge
Transmitted by either mail, e-mail, or facsimile to:
Tom Cole, Director
Registrar of Contractors
North Star Pools LLC
[email redacted]
Jandy Electric LLC
[email redacted]
By: OAH Staff