ALJDEC - Licensing
2024A-03130-NPC-ROC · Registrar of Contractors · 2024-10-29
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
STRONG ROOFING LLC,
COMPLAINANT,
v.
Nanke Signature Group LLC
License No. ROC 301998,
RESPONDENT.
No. 2024A-03130-NPC-ROC
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: October 9, 2024
APPEARANCES: Michael Frieberger represented Complainant STRONG ROOFING, LLC. Andre Carman, Esq. represented Respondent Nanke Signature Group, LLC.
ADMINISTRATIVE LAW JUDGE: Velva Moses-Thompson
EXHIBITS ADMITTED INTO EVIDENCE: Respondent’s Exhibits 2, 3, and 4.
_____________________________________________________________________
FINDINGS OF FACT
1. According to the public website of the Arizona Registrar of Contractors (Registrar), Respondent holds a General Residential B General Residential Contractor license number 301998, issued by Registrar.
2. John Nanke is Respondent’s qualifying party.
3. Complainant agreed to install waterproofing underlayment in three homes for Respondent. Clint was Respondent’s project manager.
4. Complainant did not provide Respondent with an estimate or written contract before beginning construction.
5. Complainant installed waterproofing underlayment in all three homes.
6. On August 29, 2023, Clint expressed to Mr. Frieberger that Respondent planned to move forward with another roofing company because Mr. Frieberger still had not provided proposals for the project.
7. On August 29, 2023, Mr. Frieberger responded, “Hi Clint. I understand your view. My apologies Clint. I would love the opportunity to discuss this. I really want the opportunity and I know you have no reason to have any confidence in me and my company. I do think I’m the right guy for this job and I know I can produce for you. I will give you any excuse. I know this sounds like the boy that cried wolf, my big delay was making sure I had these estimates correct. I went to go learn how to read plans, and ensure that I was accurate. I do understand that I was already behind the gun to begin with. And if I can have these bids to you by the end of day today, would you reconsider. Again, I would really love the opportunity and I really think that we could you could work together.” See the Registrar’s administrative record, pg. 53.
8. On September 4, 2023, Clint notified Mr. Frieberger that Respondent was terminating its business relationship with Complainant. Clint also expressed that the roofs that Complainant dried in were leaking and causing damage.
9. Respondent paid Complainant for the installation of one of the homes. However, Respondent failed to pay Complainant for the waterproofing installation in the homes located at 12580 W. Cooper Morgan Trail (hereinafter “Morgan Trail”) and 11925 Wild Bunch Way (hereinafter “Wild Bunch Way”).
10. Complainant filed a complaint with the Registrar alleging that Respondent failed to pay Complainant $26,755.73, when payment became due.
11. On April 11, 2024, the Registrar issued a Citation against Respondent’s license alleging that Respondent violated Arizona Revised Statutes (A.R.S.) § 32-1154(A)(10).
12. Respondent filed a timely answer to the Citation.
13. The matter was referred to the Office of Administ12rative Hearings for an evidentiary hearing.
14. A hearing was held on October 9, 2024.
15. At hearing, Marcus Frieberger testified on behalf of Complainant. Respondent presented the testimony of John Michael Nanke and Jared Nanke.
16. Mr. Frieberger explained that he installed waterproofing at the homes on Morgan Trail and Wild Bunch Way, however, Respondent failed to pay him for the work. Mr. Frieberger stated that Clint provided the materials for the job. Complainant stated that he returned to the job-site more than once to make repairs and address leaks. Mr. Frieberger communicated primarily with Clint during most of the construction.
17. Mr. Frieberger admitted during the hearing that he did not know how to read plans when he began construction.
18. At hearing, John Michael Nanke testified to the effect that while Complainant completed the dry-in, Complainant failed to respond to the complaints about the leaks. John Nanke stated that Complainant made several mistakes. John Nanke stated that Complainant improperly installed the waterproofing and used incorrect material for the installation. John Nanke stated that Respondent gave Complainant multiple opportunities to correct his work. John Nanke explained that because of the water damage, Respondent was forced to hire another contractor, Northline Roofing, to install shingles and apply underlayment at the homes on Morgan Trail and Wild Bunch Way.
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 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).
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. Complainant has failed to establish by a preponderance of the evidence that payment in the amount of $26,755.73 became due in connection with the Morgan Trail and Wild Bunch Way projects. Respondent provided credible testimony that Complainant failed to properly install the waterproofing and Respondent hired another contractor to install underlayment at Morgan Trail and Wild Bunch Way.
The undisputed evidence shows that Complainant significantly delayed in providing Respondent with an estimate for the work because he did not know how to read plans. Complainant has failed to establish that $26,755.73 became due as alleged in the complaint on the work performed at Morgan Trail and Wild Bunch Way. Therefore, the preponderance of the evidence does not show that Respondent violated A.R.S. § 32-1154(A)(10) as alleged.
ORDER
IT IS ORDERED that the Citation and Complaint in Case No. 2024A-03130 is 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, October 29, 2024.
/s/ Velva Moses-Thompson
Administrative Law Judge
Transmitted by either mail, e-mail, or facsimile to:
Tom Cole, Director
Registrar of Contractors
STRONG ROOFING LLC
[email redacted]
André E. Carman, Esq.
CARMAN LAW FIRM PLC
[email redacted]
By: OAH Staff