ALJDEC - Licensing
2023A-11891-NPC-ROC · Registrar of Contractors · 2024-07-11
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
Banker Insulation Inc,
COMPLAINANT
v.
Aspen Mountain Homes Inc.
License No. ROC 331575,
RESPONDENT
No. 2023A-11891-NPC-ROC
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: June 21, 2024
APPEARANCES: Tim Puopolo represented Banker Insulation, Inc, (Complainant). No one appeared on behalf of Respondent Aspen Mountain Home, Inc. (Respondent).
ADMINISTRATIVE LAW JUDGE: Velva Moses-Thompson
EXHIBITS ADMITTED INTO EVIDENCE: Complainant’s Exhibits 1 through 3.
_____________________________________________________________________
FINDINGS OF FACT
1. Complainant agreed to provide labor and materials to Respondent in 2023, in connection with Respondent’s activities as a construction contractor on several projects.
2. Complainant sent invoices to Respondent in 2023 totaling $46,728.20, for the labor and materials provided to Respondent.
3. Respondent failed to pay the invoices when payment was due.
4. On or about October 13, 2023, the Arizona Registrar of Contractors (Registrar or ROC) received a complaint from Respondent alleging that Respondent failed to pay monies in excess of $750, when payment became due.
5. On or about October 31, 2023, the Registrar issued a Citation against Respondent’s license alleging that Respondent may have violated Arizona Revised States (A.R.S.) § 32-1154(A)(10).
6. Respondent filed a timely answer denying the allegation in the complaint.
7. The matter was referred to the Office of Administrative Hearings for an evidentiary hearing.
8. A hearing was held on June 21, 2024.
9. At hearing, Tim Puopolo, Complainant’s Chief Administrative Officer, testified on behalf of Complainant. Mr. Puopolo explained that Respondent has failed to pay a total of $46,728.20 for labor and materials provided to Respondent, when payment became due.
10. Respondent did not appear at the hearing on June 21, 2024 and did not
filed a request to appear telephonically. Respondent did not appear, through an authorized member, employee, or attorney, and did not contact OAH to request that the start of the hearing be further delayed. Consequently, Respondent did not present any evidence to defend its license.
11. Administrative notice is taken of Respondent’s prior License record on July 11, 2024. Such prior License record reflects that Respondent’s License No. 331575 was first issued on December 8, 2020, and is suspended effective April 24, 2024. Such prior License record also reflects that there are four open complaints against Respondent’s license and there are three complaints that resulted in discipline of Respondent’s license.
CONCLUSIONS OF 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. 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.").
The Administrative Law Judge may consider the ROC’s administrative
record. See A.A.C. R4-9-118.
“Statutes shall be liberally construed to affect their objects and to promote justice.” A.R.S. § 1-211(B).
The purpose of the ROC’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).
A.R.S. § 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.
9. A.R.S. § 32-1154(A)(10) includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license “[f]ailure by 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.”
10. Payment for “[s]services rendered in connection with the licensee’s operations as a contractor” does not include interest, finance charges, lien charges, or other charges that are based solely on contract terms.
11. The undisputed evidence shows that Respondent violated A.R.S. § 32-1154(A)(10) as alleged.
12. Based upon Respondent’s violation of the provisions of A.R.S. § 32-1154(A)(10), grounds exist to impose discipline against Method’s license.
13. Because A.R.S. § 32-1154(A)(10) only includes a licensee’s failure to pay for materials or services rendered in connection with the licensee’s operations as a contractor, not late fees, interest, or other consequential or contractual damages, the Administrative Law Judge does not recommend that Respondent be required to pay late fees as a condition of keeping its contractor’s license in good standing.
RECOMMENDed order
Based on the foregoing, it is recommended that the ROC suspend license number 331575 held by Aspen Mountain Homes Inc until it has provided to the ROC, and the ROC has accepted, documents that establish that it has paid Complainant $46,728.20 in certified funds.
It is further recommended that when and if the ROC receives and accepts Respondent’s evidence that it has paid Complainant in certified funds, the ROC may close the Complaint in Case No. 2023A-11891.
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, July 11, 2024.
/s/ Velva Moses-Thompson
Administrative Law Judge
Transmitted by either mail, e-mail, or facsimile to:
Tom Cole, Director
Registrar of Contractors
Banker Insulation Inc
[email redacted]
Tom Cole
Registrar of Contractors
c/o Legal Department
[email redacted]
Mark A. Hanson, Esq.
THE LEDBETTER LAW FIRM, P.L.C.
[email redacted]
Aspen Mountain Homes Inc.
[email redacted]
By: OAH Staff