ALJDEC - Licensing
2023A-13716-NPC-ROC · Registrar of Contractors · 2024-03-21
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
Banker Insulation Inc,
COMPLAINANT
v.
Ryan Christopher Rickabaugh
License No. ROC 344915,
RESPONDENT
No. 2023A-13716-NPC-ROC
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: March 1, 2024
APPEARANCES: Tim Puopolo represented Complainant Banker Insulation Inc. (Complainant). Respondent Ryan Christopher Rickabaugh (Respondent) did not appear.
ADMINISTRATIVE LAW JUDGE: Velva Moses-Thompson
EXHIBITS ADMITTED INTO EVIDENCE: None.
_____________________________________________________________________
FINDINGS OF FACT
1. In or about August of 2023, Respondent hired Complainant to perform construction work at Respondent’s home.
2. In October of 2023 and December of 2023, Complainant issued invoices to Respondent for the work performed.
3. Complainant subsequently filed a complaint with the Arizona Registrar of Contractors (Registrar) alleging that Respondent failed to pay Complainant $7,300 for labor and material provided to Respondent in connection with Respondent’s operations as a contractor.
4. On December 15, 2023, the Registrar issued a Citation against Respondent’s license alleging that Respondent may have violated Arizona Revised Statutes (A.R.S.) § 32-1154(A)(10).
5. Respondent filed a timely answer to the Citation. Respondent wrote in his response, “This is an owner builder permit and project. I obtained a license during the course of this project in order to pursue other opportunities but the project in itself remains an owner builder project as I work to complete our family home and primary residence.”
6. The matter was referred to the Office of Administrative Hearings for an evidentiary hearing.
7. A hearing was held on March 1, 2024.
8. At hearing, Timothy Puopolo testified on behalf of Complainant.
9. Respondent did not appear for the hearing.
10. Mr. Puopolo explained that Respondent hired Complainant to perform construction work at Respondent’s home. When asked by the Administrative Law Judge whether Complainant performed work for Respondent in connection with Respondent’s work as a contractor, Mr. Puopolo responded that Respondent held himself out as a contractor.
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.” Emphasis Added.
10. The preponderance of the evidence shows that Complainant performed construction work at Respondent’s personal residence. Complainant failed to establish that it performed work for Respondent in connection with Respondent’s operations as a contractor.
11. The preponderance of the evidence does not show that Respondent violated A.R.S. § 32-1154(A)(10) as alleged.
12. Therefore, the Administrative Law Judge does not find grounds to impose discipline against Respondent’s license.
RECOMMENDED ORDER
Based on the foregoing, it is recommended that on the effective date of the Registrar’s Order, Complainant’s complaint 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, 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
Banker Insulation Inc
[email redacted]
Ryan Christopher Rickabaugh
[email redacted]
By: OAH Staff