ALJDEC - Licensing
2023A-13417-NPC-ROC · Registrar of Contractors · 2024-03-21
IN THE OFFICE IN THE OFFICE OF ADMINISTRATIVE HEARINGS
Automatic Gate Systems Inc.
COMPLAINANT,
v.
Frontier Business Solutions In
DBA: Acme Works
License No. ROC 222490,
RESPONDENT.
No. 2023A-13417-NPC-ROC
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: March 1, 2024
APPEARANCES: Sheryl Campanella represented Complainant Automatic Gate Systems, Inc. (Complainant). No one appeared on behalf of Respondent Frontier Solutions In DBA: Acme Works License No. ROC 222490 (Respondent).
ADMINISTRATIVE LAW JUDGE: Velva Moses-Thompson
EXHIBITS ADMITTED INTO EVIDENCE: None
_____________________________________________________________________
FINDINGS OF FACT
1. Respondent hired Complainant to perform installation work for automatic gates in connection with Respondent’s work as a contractor.
2. Complainant performed the work pursuant to the agreement of the parties. 3. On or about November 22, 2023, Complainant filed a complaint with the Arizona Registrar of Contractors (Registrar) alleging that Respondent failed to pay $5,715.12 for labor and material rendered to Respondent in connection with Respondent’s work as a contractor.
4. On December 28, 2023, the Registrar issued a Citation against Respondent license alleging that Respondent violated Arizona Revised Statues (A.R.S.) § 32-1154(A)(10).
5. Respondent filed a timely answer. In its answer, Respondent did not dispute that he owed monies to Complainant. Respondent stated that he had been ill and unable to work.
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.").
“Statutes shall be liberally construed to effect 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.
8. 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.”
9. Payment for “[s]ervices 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.
10. The preponderance of the evidence shows that Respondent violated A.R.S. § 32-1154(A)(10) as alleged.
11. Based upon Respondent’s violation of the provisions of A.R.S. § 32-1154(A)(10), grounds exist to impose discipline against Respondent’s license.
12. 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 222490 held by Frontier Business Solutions In DBA: Acme Works
until it has provided to the ROC, and the ROC has accepted, documents that establish that it has paid Complainant $5,715.12 in certified funds.
It is further recommended that when and if the ROC receives and accepts Respondent’s evidence that it has paid Complainant $5,715.12 in certified funds, the ROC may close the Complaint in Case No. 2023A-13417.
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, March 21, 2024.
/s/ Velva Moses-Thompson
Administrative Law Judge
Transmitted by either mail, e-mail, or facsimile to:
Tom Cole, Director
Registrar of Contractors
Automatic Gate Systems Inc,
[email redacted]
Frontier Business Solutions In
DBA: Acme Works
[email redacted]
By: OAH Staff