ALJDEC - Licensing
2023A-10934-NPC-ROC · Registrar of Contractors · 2024-01-25
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
Winsupply Gilbert AZ Co.,
COMPLAINANT
v.
Ward Mechanical, Inc.
License No. ROC 336954,
RESPONDENT
No. 2023A-10934-NPC-ROC
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: January 10, 2024
APPEARANCES: Amanda Searcy appeared via Google Meet on behalf of Complainant Winsupply Gilbert AZ Co.
ADMINISTRATIVE LAW JUDGE: Adam D. Stone
EXHIBITS ADMITTED INTO EVIDENCE: Complainant’s Exhibits 1-4 were admitted into evidence.
_____________________________________________________________________
FINDINGS OF FACT
On November 21, 2023, the Registrar of Contractors (“ROC”) issued a Notice of Hearing on Contested Case setting the above-captioned matter for hearing on January 10, 2024 at the Office of Administrative Hearings.
On November 27, 2023, the tribunal issued an Order with the Google Meet information which was sent to the parties’ addresses and email addresses of record with ROC.
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 Ward Mechanical on October 23, 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. 336954 issued by ROC. John William Ward is Respondent’s qualifying party.
Complainant is Winsupply Gilbert AZ Co.
On or about April 11, 2023, Complainant sold materials consisting of HVAC equipment to Respondent for a total of $53,768.25.
On or about September 18, 2023, Complainant filed with ROC a complaint against Respondent alleging that Respondent owed Complainant $53,768.25.
On or about November 13, 2023, Respondent submitted an Answer with ROC, asserting among other things, that the equipment/materials used were for his personal residence not his business, and that the equipment was defective and/or inoperable.
At hearing, Ms. Searcy testified that while she knew the equipment was to be used in Mr. Ward’s personal residence, he used his business account and his previous relationship with Complainant to receive a discount of 40%.
Although the start of the hearing was delayed 20 minutes, Respondent did not appear through an authorized member, employee, or attorney, nor did Respondent request that the hearing be continued. Therefore, Respondent did not present any evidence to support his position.
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 took advantage of his business relationship with Complainant to receive a substantial discount of 40% on the materials. While the tribunal understands that the equipment was for Mr. Ward’s personal use, the agreement was made with Respondent’s business account with Complainant, and got the benefit of using the same, rather than Mr. Ward’s personal credit card or bank account.
Therefore, 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 $53,768.25.
RECOMMENDED ORDER
IT IS RECOMMENDED that Ward Mechanical Inc.’s license number 336954 be suspended until the Registrar receives proof that it has paid to Winsupply Gilbert AZ Co. $53,768.25.
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 25, 2024.
/s/ Adam D. Stone
Administrative Law Judge
Transmitted by either mail, e-mail, or facsimile to:
Tom Cole, Director
Registrar of Contractors
Ward Mechanical, Inc.
3550 E. June Circle
Mesa, AZ 85213
[email redacted]
Winsupply Gilbert AZ Co.
[email redacted]
By: OAH Staff