ALJDEC - Licensing
2023A-11601-NPC-ROC · Registrar of Contractors · 2023-12-22
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
Desert Ready Mix LLC,
COMPLAINANT
v.
L. B. Contracting LLC
License No. ROC 244981,
RESPONDENT
No. 2023A-11601-NPC-ROC
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: December 8, 2023
APPEARANCES: Nina Scott and Valerie Powell appeared via Google Meet on behalf of Complainant Desert Ready Mix LLC. Larry Bryant appeared via Google Meet on behalf of Respondent L.B. Contracting LLC.
ADMINISTRATIVE LAW JUDGE: Adam D. Stone
EXHIBITS ADMITTED INTO EVIDENCE: Complainant’s Exhibits 1 through 6 were admitted into evidence.
_____________________________________________________________________
FINDINGS OF FACT
On October 31, 2023, the Registrar of Contractors (“ROC”) issued a Notice of Hearing on Contested Case setting the above-captioned matter for hearing on December 8, 2023, 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 L. B. Contracting LLC 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. 244981 issued by ROC. Orville Larry Bryant is Respondent’s qualifying party and an officer in the corporation.
Complainant is Desert Ready Mix LLC.
Complainant sold to Respondent material used by Respondent in connection with its license.
On October 5, 2023, Complainant filed with ROC a complaint against Respondent alleging that Respondent owed Complainant $7,501.04.
At hearing, Ms. Scott testified that there were three invoices, namely 11285001, 11285444, 11285848, which have not been paid.
Ms. Scott stated that all invoices were sent to the email address supplied by Respondent on the contract. She further testified that after initially not receiving payment, Mr. Bryant informed her that he had not been paid by the general contractor, so she again waiting some time before filing the Complaint with ROC.
Mr. Bryant acknowledged that he owed the money, however, he was not fully paid either on his contract with FCI Construction. Mr. Bryant testified further that he only received $4,500.00 from FCI Construction and that was for labor costs for May 2023.
Further, Mr. Bryant testified that he did not have the money to pay as his business bank account had $32.00 and his pickup truck was just repossessed for failure to pay.
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). These are affirmative defenses that Respondent bears the burden to establish by a preponderance of the evidence to avoid a violation of A.R.S. § 32-1154(A)(10).
The preponderance of the evidence shows that Respondent owes Complainant $7,501.04 for materials purchased in connection with Respondent’s operations as a contractor. However, Respondent met its burden establishing an affirmative defense. The testimony and documents provided by Mr. Bryant to the Registrar, demonstrated that Respondent had only been paid $4,500.00 in May for labor costs.
Based upon the foregoing, the preponderance of the evidence shows that Respondent has not violated section 32-1154(A)(10).
RECOMMENDED ORDER
IT IS RECOMMENDED that the complaint against L. B. Contracting LLC.’s license number 244981 be 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, December 22, 2023.
/s/ Adam D. Stone
Administrative Law Judge
Transmitted by either mail, e-mail, or facsimile to:
Tom Cole, Director
Registrar of Contractors
Desert Ready Mix LLC
[email redacted]
L. B. Contracting LLC
[email redacted]
By: OAH Staff