ALJDEC - Licensing
2023A-09397-NPC-ROC · Registrar of Contractors · 2024-01-01
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
Janc Excavation and Construction LLC,
COMPLAINANT,
v.
DirtWorks Contracting Inc.
License No. ROC 318883,
RESPONDENT.
No. 2023A-09397-NPC-ROC
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: December 11, 2023
APPEARANCES: Juanita Jantz represented Complainant Janc Excavation and Construction, LLC. Karen A. Palecek, Esq. represented Respondent DirtWorks Contracting, Inc.
ADMINISTRATIVE LAW JUDGE: Velva Moses-Thompson
EXHIBITS ADMITTED INTO EVIDENCE: Complainant’s Exhibits A through E; Respondent’s Exhibits 1 through 3.
_____________________________________________________________________
FINDINGS OF FACT
1. In or around May of 2023, Complainant Janc Excavation (Complainant) entered into an agreement with Respondent DirtWorks Contracting, Inc. (Respondent), wherein Complainant agreed to provide labor, materials, and equipment to Respondent in connection with Respondent’s operations as a contractor.
2. Complainant provided labor and materials to Respondent as promised under the contract.
3. From April 2023 through August 2023, Complainant issued invoices to Respondent for the following amounts for labor and materials provided in connection with the May 2023 agreement:
$163,187.20
$79,900.00
$34,000.00
$21,708.00
$18,425.00
4. Respondent failed to pay the invoices.
5. On or about August 15, 2023, Complainant filed a complaint with the Arizona Registrar of Contractors (ROC) alleging that Respondent failed to pay for labor and equipment provided to Respondent pursuant to the May 2023 contract.
6. On August 30, 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).
7. The matter was referred to the Office of Administrative Hearings for an evidentiary hearing.
8. A hearing was held on December 11, 2023.
9. At hearing, Complainant presented the testimony of Juanita Jantz, Henry Jantz, and Kerry Lanoue. Respondent presented the testimony of Edward Britt.
10. Ms. Jantz testified to the effect that Respondent failed to pay monies in excess of $750.00 when payment became due for labor and equipment provided to Respondent. Ms. Jantz stated that Respondent has not been paid in full for the work by its clients because Respondent failed to provide the necessary waivers to those clients. 11. Mr. Lanoue is a former employee of Respondent. Mr. Lanoue explained that Respondent received some payments from Respondent’s clients. However,
Mr. Lanoue did not know the months or invoices those payments covered.
12. Mr. Britt disputed that Respondent owed the amount alleged by Complainant. Mr. Britt explained that Respondent was not paid by its clients for the projects in question. Mr. Britt explained that Responded recorded mechanics liens for the projects associated with the invoices billed by Complainant. However, Mr. Britt explained that Respondent had not been paid sufficient money as payments for those projects and Respondent lacks the ability to pay Complainant. Mr. Britt explained that Respondent has only $214.00 in its combined checking and savings accounts. See Exhibit 1. Additionally, Mr. Britt explained that Respondent’s liabilities exceed its assets. See Exhibits 1 through 3.
CONCLUSIONS OF LAW
1. This matter lies within the Registrar’s jurisdiction.
2. 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.
3. 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).
4. 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.")
5. “Statutes shall be liberally construed to effect their objects and to
promote justice.” Ariz. Rev. Stat. § 1-211(B).
6. 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).
7. Ariz. Rev. Stat section 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. The preponderance of the evidence shows that Respondent lacks the capacity to pay Complainant for the labor and equipment provided by Complainant to Respondent.
9. The preponderance of the evidence shows that Respondent did not receive sufficient monies as payment for the construction projects where services and materials were rendered for Respondent.
10. Therefore, the preponderance of the evidence does not show that Respondent violated Ariz. Rev. Stat section 32-1154(A)(10) as alleged.
ORDER
IT IS ORDERED that the Citation and Complaint in Case No. 2023A-09397 is dismissed.
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 1, 2024.
/s/ Velva Moses-Thompson
Administrative Law Judge
Transmitted by either mail, e-mail, or facsimile to:
Tom Cole
Registrar of Contractors
[email redacted]
Janc Excavation and Construction LLC
[email redacted]
Karen A. Palecek Esq.
PALECEK & PALECEK, PLLC
[email redacted]
DirtWorks Contracting Inc
[email redacted]
By: OAH Staff