ALJDEC - Licensing

2024A-00306-NPC-ROC · Registrar of Contractors · 2024-04-23

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Mission Steel LLC,

COMPLAINANT

v.

ABCO Solar Inc.

License No. ROC 258378,

RESPONDENT

No. 2024A-00306-NPC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: April 8, 2024

APPEARANCES: Mitchell Brahler appeared via Google Meet on behalf of Complainant Mission Steel LLC. David Shorey appeared via Google Meet on behalf of ABCO Solar Inc.

ADMINISTRATIVE LAW JUDGE: Adam D. Stone

EXHIBITS ADMITTED INTO EVIDENCE:

_____________________________________________________________________

FINDINGS OF FACT

On February 20, 2024, the Registrar of Contractors (“ROC”) issued a Notice of Hearing on Contested Case setting the above-captioned matter for hearing on April 8, 2024 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 ABCO Solar Inc. on January 24, 2024.

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. 258378 issued by ROC. David Shorey is Respondent’s and an officer in the corporation.

Complainant is Mission Steel LLC.

Complainant performed work for Respondent in connection with its license on two separate projects.

On January 9, 2024, Complainant filed with ROC a complaint against Respondent alleging that Respondent owed Complainant $80,200.00.

At hearing, Mitchell Brahler testified on behalf of Complainant.

Mr. Brahler testified that there were two projects, namely, the Green Valley United Methodist Church, and the Thomson Residence, for which Complainant had yet to receive full payment.

As to the first project, Mr. Brahler testified that although a down payment of $21,720.00 was received, there was still a balance due of $32,580.00.

As to the second project, the Thomson residence, Mr. Brahler testified that Respondent requested that no down payment be made, however, there have been zero payments made as to this job. The total amount due was $45,440.00.

Mr. Brahler testified that because Respondent owed $78,020.00, Complainant has accessed its line of credit and was paying over $8,000.00 per month to the same.

Mr. Shorey testified on behalf of Respondent. He testified that because of a lien placed by the Arizona Corporation Commission, he lost a significant amount of business. Mr. Shorey testified that he had nothing but bad excuses for not paying and testified that he had received a majority of the fund for the Green Valley United Methodist Church project, and received full payment of approximately over $101,000.00 on the Thomson project.

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 owes Complainant more than $750 for materials purchased in connection with Respondent’s operations as a contractor.

Therefore, the only issue remaining is whether Respondent raised a sufficient justification or excuse for failing to pay Complainant on the invoices in question. This is an affirmative defense that Respondent bears the burden to establish. Here, Respondent testified that she had received the vast majority of the payments for the two projects and failed to pay Complainant on the two invoices.

Therefore, the preponderance of the evidence shows that Respondent has violated section 32-1154(A)(10).

RECOMMENDED ORDER

IT IS RECOMMENDED Respondent ABCO Solar Inc.’s License No. ROC 258378 shall be suspended until Respondent pays $78,020.00 to Complainant Mission Steel LLC.

It is further ordered that if on or before thirty days after the effective date of the final order, the Registrar receives written proof from Respondent that is satisfactory to the Registrar that Respondent has paid Complainant $78,020.00 by certified or cashier’s check, the Registrar not suspend Respondent’s license but, instead, close Case No. 2024-00306.

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, April 23, 2024.

/s/ Adam D. Stone

Administrative Law Judge

Transmitted by either mail, e-mail, or facsimile to:

Tom Cole, Director

Registrar of Contractors

Mission Steel LLC

[email redacted]

ABCO Solar Inc

[email redacted]

By: OAH Staff