ALJDEC - Licensing

2024A-03278-NPC-ROC · Registrar of Contractors · 2024-08-01

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

A S A P Door Repair and Service Inc.,

COMPLAINANT

v.

Apostle Builders Inc.

License No. ROC 297602,

RESPONDENT

No. 2024A-03278-NPC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: July 15, 2024

APPEARANCES: Matt Nelson appeared via Google Meet on behalf of Complainant A S A P Door Repair and Service Inc. Scott Rudolph appeared via Google Meet on behalf of Respondent Apostle Builders Inc.

ADMINISTRATIVE LAW JUDGE: Adam D. Stone

EXHIBITS ADMITTED INTO EVIDENCE: Complainant’s Exhibits 1-4 were admitted into evidence.

_____________________________________________________________________

FINDINGS OF FACT

On May 31, 2024, the Registrar of Contractors (“ROC”) issued a Notice of Hearing on Contested Case setting the above-captioned matter for hearing on July 15, 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 Apostle Builders Inc. on April 30, 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. 297602 issued by ROC. Scott Rudolph is Respondent’s qualifying party.

Complainant is A S A P Door Repair and Service Inc.

Complainant installed a security door for Respondent in connection with its license on a project for which Respondent was the general contractor.

On March 18, 2024, Complainant filed with ROC a complaint against Respondent alleging that Respondent owed Complainant $5,404.10.

At hearing Mr. Nelson testified that there was an original quote to perform the work on a Wednesday. However, when his workers arrived, they determined that there was too much floor traffic and rescheduled the work for the Saturday.

Based upon this, Mr. Nelson testified, that the parties agreed to a change order in the amount of $5,404.10.

Further, Mr. Nelson testified that his worker John LaBounty prepared the change order and while typically overtime was 1.5 hours, he was unsure as to how Mr. LaBounty came to the amount charged on the change order.

Mr. Rudolph testified that he did not believe the document he signed was a change order, rather it was an invoice. He testified further, that while the original quote was for $2,469.74, he was unsure how Complainant reached the $5,404.10 number.

Further, Mr. Rudolph disputed a $780.00 trip charge from Complainant as all Complainant’s workers did was sit in the parking lot and smoked cigarettes.

Mr. Rudolph testified that the security door was installed on the Saturday, but that he needed to make some minor adjustments to the same as the door was closing too quickly.

Finally, Mr. Rudolph testified that the Saturday work should have only been time and half which would have only been an extra $1,200.00 on top of the original quote.

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. While Mr. Rudolph testified that he did not believe the change order he signed was in fact a change order, he nonetheless signed the same and became bound by those terms. Even, if Mr. Rudolph believed that the $5,404.10 was not owed, he still failed to pay what he thought he should owe, be it $3,669.74 or $551.15. Zero is not acceptable.

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

Respondent’s license should be suspended until it pays to Complainant $5,404.10.

RECOMMENDED ORDER

IT IS RECOMMENDED that Apostle Builders, Inc.’s license number 297602 be suspended until the Registrar receives proof that it has paid to Home Center Supply, LLC $5,404.10.

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, August 1, 2024.

/s/ Adam D. Stone

Administrative Law Judge

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

Tom Cole, Director

Registrar of Contractors

A S A P Door Repair and Service Inc

[email redacted]

Apostle Builders Inc

[email redacted]

By: OAH Staff