ALJDEC - Licensing

2023A-10020-NPC-ROC · Registrar of Contractors · 2024-01-24

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Vezina Industries Inc.,

COMPLAINANT,

v.

Vianngel's Window & Glass LLC,

License No. ROC 344612,

RESPONDENT.

No. 2023A-10020-NPC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: January 17, 2024

APPEARANCES: Mike Vezina and Tony Hernandez, co-owners, appeared via Google Meet on behalf of Complainant Vezina Industries Inc.

Vianngel’s Window & Glass LLC failed to appear.

ADMINISTRATIVE LAW JUDGE: Kay A, Abramsohn

EXHIBITS ADMITTED INTO EVIDENCE: Notice of Hearing packet.

_____________________________________________________________________

FINDINGS OF FACT

Vianngel’s Window & Glass LLC (Respondent) is the holder of License No. ROC 344612 issued by the Registrar of Contractors (Registrar).

Vezina Industries Inc. (Complainant) provided materials to Respondent. These material purchases were initiated by Respondent by giving Complainant a purchase order per project/home; Complainant then ordered the materials from the manufacturer, Alpine Windows. At the time of these orders, Respondent had obtained installation work through a tract home builder, Century Complete.

Tony Hernandez of Complainant had an existing relationship with Jose Loya of Respondent. Years before, when Tony was a supervisor at another company, Jose also worked for that same company.

Due to their existing relationship, Complainant extended the goodwill of reduced prices to Respondent and maintained the ordered inventory for Respondent in Complainant’s shared office/warehouse space. The parties’ practice was that Respondent would pay for the particular windows it picked up as those windows were needed and being installed on the homes. However, some checks from Respondent were returned NSF and Complainant began to extend credit to Respondent. Within 60 days, the account was overdue and Complainant was not making payments, despite the parties having discussions and meetings about the account.

In September 2023, Complainant contacted a collections agency, Debt Collections International (DCI), regarding collecting on the Vianngel's Window & Glass LLC account. DCI, with the agreement of Complainant, proceeded to contract with Respondent regarding a payment plan.

On or about October 5, 2023, Complainant filed with ROC a non-payment complaint (Complaint) against Respondent alleging that Respondent owed Complainant $170,000.00 for the various purchase orders. While there are no dates on Respondent’s purchase orders, Complainant maintained the Respondent’s purchase orders with Complainant’s records of the dates of all orders that Complainant then placed with the manufacturer; the past-due money amounts are also noted on purchase orders.

On October 19, 2023, Tony Murrieta on behalf of Respondent, filed a response with the Registrar to the Complaint, indicating its belief that the matter was resolved with its DCI agreement. Respondent stated that it had “already [made] 2 payments that have been successfully processed. We will continue until the correct amount owed upon is completed.”

The matter was not resolved between the parties.

On November 3, 2023, the Registrar issued a Citation for Alleged Violation of A.R.S. § 32-1154(A)(10). Respondent’s Answer to the Citation was due on November 18, 2023.

On November 20, 2023, Mr. Murrieta emailed the Registrar, indicating that Respondent had made three payments through DCI.

On December 5, 2023, the Registrar issued a Notice of Hearing setting this matter for virtual administrative hearing on January 17, 2024 at the Office of Administrative Hearings (OAH). Within the Notice of Hearing, as it had in the Citation, Registrar alleges that Respondent may have violated A.R.S. § 32-1154(A)(10).

On December 12, 2023, OAH issued its ORDER providing the parties with the January 17, 2024 virtual meeting information.

Respondent made no appearance at the time of the hearing; therefore, no other information or evidence was obtained from Respondent.

At hearing, Complainant explained the parties’ relationship and the purchases, and further indicated that when Respondent began not paying on the purchases, Complainant eventually requested that Respondent vacate Complainant’s warehouse. Complainant noted that Respondent took with it nearly all of the ordered materials with the exception of “2 house packages” for which Respondent gave “credit” against the balance Respondent owed.

Complainant argued that Respondent was receiving payments for Respondent’s installation work for Century Complete which payments should have used to pay for the material orders. Mr. Hernandez testified that, on January 16, 2024, he had spoken with Rocky Burgess from Century Complete who stated that Respondent had been paid for all the installation work Respondent had performed for Century Complete.

Complainant explained that when Respondent makes a $10,000.00 payment to DCI, only $7,800.00 comes through to Complainant because DCI takes twenty-two percent (22%). Complainant indicated that, on January 16, 2024, it had received a “third check” from DCI.

Finally, Complainant explained that DCI had informed Complainant that Respondent had told DCI that, after making its 4th payment to DCI, Respondent would want to payoff the debt.

At the time of the hearing, Complainant indicated the remaining balance due from Respondent is $149,700.90.

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. Arizona Administrative Code (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 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.” A.R.S. § 32-1154(A)(10).

The evidence of record demonstrates that Respondent owes Complainant more than $750.00 for services rendered in connection with Respondent’s operations as a contractor.

At hearing, Respondent failed to present or establish by any preponderance of evidence that it had lacked the ability to pay Complainant for the materials or that it had not been paid sufficient funds on the projects for which Complainant’s services were performed.

Complainant established at hearing that Respondent violated A.R.S. § 32-1154(A)(10) by failing to pay Complainant $170,000.00 for services and materials rendered in connection with Respondent’s contracting business. The evidence demonstrates that, at the time of the January 17, 2024 administrative hearing, Respondent still owes Complainant the amount of $149,700.90. Therefore, the evidence of record demonstrates that Respondent has violated A.R.S. § 32-1154(A)(10) and that grounds exist for the Registrar to impose discipline against Respondent’s license.

Based on the foregoing, Respondent’s license should be suspended until it pays to Complainant $149,700.90.

RECOMMENDED ORDER

IT IS RECOMMENDED that Vianngel's Window & Glass LLC License No. ROC 344612 be suspended until the Registrar receives proof that it has paid to Vezina Industries Inc. $149,700.90.

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/ Kay Abramsohn

Administrative Law Judge

Transmitted electronically to:

Tom Cole

Registrar of Contractors

Legal Department

[email redacted]

Respondent

Vezina Industries Inc.

[email redacted]

Complainant

Vianngel's Window & Glass LLC

[email redacted]

By: OAH Staff