ALJDEC - Licensing

2024A-03092-NPC-ROC · Registrar of Contractors · 2024-09-12

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Canyon State Barricade Service LLC,

COMPLAINANT,

v.

Boyd Development Company LLC

License No. ROC 316026,

RESPONDENT.

No. 2024A-03092-NPC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: August 7, 2024.

APPEARANCES:

For Complainant: Larry Herrera.

For Respondent: Attorney Dominica Minore and Jonathan Boyd.

ADMINISTRATIVE LAW JUDGE: Samuel Fox

EXHIBITS ADMITTED INTO EVIDENCE: Administrative notice was taken of the Hearing Packet submitted by the Registrar of Contractors. Complainant’s Exhibits A through G. Respondent’s Exhibit’s 1 through 6. Respondent’s Post-Hearing Exhibit A.

_____________________________________________________________________

FINDINGS OF FACT

Boyd Development Company LLC (Respondent) was the holder of License No. 316026, issued by the Arizona Registrar of Contractors (Registrar) on October 10, 2017.

On or about January 2023, Canyon State Barricade Service LLC (Complainant) entered into a verbal contract with Respondent for, among other things, labor, material, and permits for construction-related street signage.

On or about March 14, 2024, Complainant filed a Licensed Complaint Form with the Registrar, claiming Respondent had failed to pay two invoices, amounting to approximately $13,110.18.

On or about March 19, 2024, the Registrar notified Complainant that the “complaint is incomplete and will not be substantively reviewed by the Registrar until the [Subcontractor agreement signed by Boyd Development Company LLC] is provided.”

The preponderance of the evidence established the following facts, which deserved special attention for the purposes of this Decision:

The subcontractor agreement provided by Complainant to the Registrar and this Tribunal was false, and Respondent’s signature upon that contract was false.

The City of Goodyear invoice provided by Complainant to Respondent, the Registrar, and this Tribunal was edited to falsely convey an inflated cost of the City’s permit.

Complainant was found not credible. The weight of Complainant’s testimony and evidence has been substantially discounted based upon the above demonstration of its lack of trustworthiness and truthfulness.

On April 23, 2024, the Registrar issued a Citation, alleging that Respondent violated Arizona Revised Statutes (A.R.S.) § 32-1154 (A)(10). Respondent’s Answer was due by May 8, 2024.

The Registrar issued, on April 29, 2024, and quashed, on May 6, 2024, a Final Administrative Decision and Order for Default.

Respondent filed a timely answer to the Citation on May 8, 2024.

The matter was referred to the Office of Administrative Hearings for an administrative hearing.

A hearing was held on August 7, 2024.

At hearing, Complainant presented the testimony of Larry Herrera. Respondent presented the testimony of Jonathan Boyd.

The parties agreed that the only amount at issue was the permit fee.

The parties agreed that Complainant never paid the permit fee.

The City of Goodyear changed electronic systems around January 2024.

During the hearing, Mr. Boyd testified that the City of Goodyear would not be collecting fees from the old system. He also received a communication from the City of Goodyear, stating that it would not be collecting fees in the old system.

The Tribunal left the record open for two weeks to allow the parties to submit information from the City and an additional two days for the parties to respond to any documents submitted.

On August 21, 2024, Respondent provided a series of communications between Respondent and the City of Goodyear, which demonstrated that the fees would not be collected. Complainant did not file a response about the emails. In relevant part, the City employee stated as follows:

I wanted to send an email just to document that phone call conversation we had this morning. The City of Goodyear will not be pursuing the overdue traffic control fees which totaled $4,424.00. Boyd Development nor Canyon State Barricades will be receiving notifications of the overdue fees from this point forward. The City of Goodyear recently went through a permitting software change and the upper management of the City of Goodyear (Development Services) has made the decision to not pursue overdue permit fees from the previous software. If you have any questions, please feel free to contact me.

Complainant will not have to pay the permit fee.

No evidence was presented to support that Respondent agreed to pay late fees. Complainant relied upon a late fee statement on its invoices.

CONCLUSIONS OF LAW

This matter lies within the Registrar’s jurisdiction.

Complainant bore the burden of proof to establish Respondent’s statutory violations by a preponderance of the evidence. Respondent bore the burden of proof to establish an affirmative defense by a preponderance of the evidence.

“A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.”

The evidence on record may be given more or less weight toward establishing a preponderance depending on the indicia of credibility associated with that evidence and its source. When a source is proven untrustworthy, its evidence shall be considered less probative of the truth.

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 or agent or official of a licensee to pay monies in excess of $750 when due for materials or services rendered in connection with the licensee's operations as a contractor unless the licensee proves that the licensee lacks the capacity to pay and has not received sufficient monies as payment for the particular construction work project or operation for which the services or materials were rendered or purchased.

Statutes should be interpreted to provide a fair and sensible result and “be liberally construed to effect their objects and to promote justice.”

The purpose of the ROC’s licensing statutes is to protect the public from unscrupulous, unqualified, and financially irresponsible contractors.

Upon review of the evidence submitted this case, Complainant failed to establish that any monies were “due” for materials or services rendered to Respondent in connection with Respondent’s operations as a licensed contractor.

The preponderance of the evidence did not show that Respondent violated A.R.S. § 32-1154(A)(10) as alleged.

Therefore, the Administrative Law Judge did 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 closed.

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, September 12, 2024.

/s/ Samuel Fox

Administrative Law Judge

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

Tom Cole, Director

Registrar of Contractors

Dominica J. Minore, Esq.

[email redacted]

Canyon State Barricade Service LLC

[email redacted]

By: OAH Staff