ALJDEC - Licensing

2024A-00816-NPC-ROC · Registrar of Contractors · 2024-05-08

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

C M Trucking Inc,

COMPLAINANT

v.

All State Specialist LLC

License No. ROC 285566,

RESPONDENT

No. 2024A-00816-NPC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: April 25, 2024

APPEARANCES: Teresa Davito appeared via Google Meet on behalf of Complainant C M Trucking Inc.

ADMINISTRATIVE LAW JUDGE: Adam D. Stone

EXHIBITS ADMITTED INTO EVIDENCE:

_____________________________________________________________________

FINDINGS OF FACT

On or about January 17, 2024, Complainant filed with ROC a complaint against Respondent alleging that Respondent owed Complainant $22,460.00.

On March 12, 2024, the Registrar of Contractors (“ROC”) issued a Notice of Hearing on Contested Case setting the above-captioned matter for hearing on April 25, 2024 at the Office of Administrative Hearings. The Registrar mailed copies of the Notice of Hearing to the parties at their addresses and email addresses of record.

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 All State Specialist LLC on February 8, 2024, the tribunal issued an Order containing the Google Meet information, which too was sent to the parties at their addresses and email addresses of record, and Respondent’s attorney of record.

Through the citation and Notice of Hearing, ROC alleges that Respondent may have violated Ariz. Rev. Stat. section 32-1154(A)(10).

Respondent timely filed a response on February 26, 2024, indicating that it lacked the capacity to pay.

Respondent holds License No. 285566 issued by ROC. Peter James Mizioch is an officer in the corporation.

Complainant provided trucks to Respondent so that Respondent could haul away dirt, concrete and other debris when it was on the construction site. The trucks were proved from October 16, 2023 through January 8, 2024.

The hearing was held as scheduled on April 25, 2024.

Although the start of the hearing was delayed 15 minutes, Respondent did not appear through an authorized member, employee, or attorney. Consequently, Respondent did not present any evidence to defend its license.

At hearing, Teresa Davito testified on behalf of Complainant.

Ms. Davito testified that there was an error in the Complaint in the amount owed. She testified that the amount owed was $23,523.75, and referenced the same in “Attachment 1” to the Complaint.

Further, Ms. Davito testified that on February 2, 2024, Respondent made a payment of $5,000.00, which left a current balance of $18,523.75.

Finally, Ms. Davito testified that she had made numerous attempts to collect payment on only received the partial payment once this action was filed.

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. While the tribunal appreciates Respondent’s response to the Complaint, it provided no persuasive evidence of the same to meet its burden.

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

RECOMMENDED ORDER

IT IS RECOMMENDED Respondent All State Specialist LLC’s License No. ROC 285566 shall be suspended until Respondent pays $18,523.75 to Complainant Southwest Barricades 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 $18,523.75 by certified or cashier’s check, the Registrar not suspend Respondent’s license but, instead, close Case No. 2024-00816.

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, May 8, 2024.

/s/ Adam D. Stone

Administrative Law Judge

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

Tom Cole, Director

Registrar of Contractors

C M Trucking Inc

[email redacted]

Veronica L. Manolio, Esq.

[email redacted]

All State Specialist LLC

PO Box 71835

Phoenix, AZ 85050

By: OAH Staff