ALJDEC - Licensing

2024A-03996-NPC-ROC · Registrar of Contractors · 2025-05-07

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Associated Finishes Inc.,

COMPLAINANT

v.

J P Kush Construction LLC

License No. ROC 247343,

RESPONDENT

No. 2024A-03996-NPC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: April 22, 2025

APPEARANCES: James Sparks, Esq. appeared on behalf of Complainant Associated Finishes Inc. Jason Kush appeared on behalf of Respondent J P Kush Construction LLC.

ADMINISTRATIVE LAW JUDGE: Adam D. Stone

EXHIBITS ADMITTED INTO EVIDENCE: Complainant’s Exhibits 1-15 and Respondent’s Exhibits 1-2 were admitted into evidence.

_____________________________________________________________________

FINDINGS OF FACT

On July 9, 2025, the Registrar of Contractors (“ROC”) issued a Notice of Hearing on Contested Case setting the above-captioned matter for hearing on August 22, 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 J P Kush Construction LLC on May 13, 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. 247343 issued by ROC. Jason Kush is Respondent’s qualifying party and a member in the corporation.

Complainant was hired to perform drywall installation at several houses in a development in which Respondent was the general contractor.

On April 5, 2024, Complainant filed with ROC a complaint against Respondent alleging that Respondent owed Complainant $67,706.00.

After several continuances, the hearing was convened on April 22, 2025.

Counsel for Complainant avowed that invoice 273389 had been paid by Respondent, leaving only two invoices, totaling $30,689.00 due and owing.

Mr. Kush testified that Complainant was hired to complete multiple lots, and that the lot for the last two invoices, (Lot 5 or 6409) had been satisfactorily completed, and that he had been paid by the property owner for the drywall work performed by Complainant.

However, Mr. Kush testified that there were workmanship issues with “Lot 2”, and that per the terms of the contract, he could properly withhold payments to Complainant. Specifically, Mr. Kush testified that sections 6, 8.1, and 8.5, allowed him to properly withhold payments.

Nicole Pinazza testified that she was the owner of “Lot 2”, and testified that she initially filed a workmanship complaint with ROC against Respondent due to some issues with the drywall, but that Complainant remedied the same. Ms. Pinazza testified that the remaining issues in her complaint had to do with incorrect doors installed by Respondent, but there were no further issues with Complainant’s work on her house.

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 $750.00 for materials purchased and work performed in connection with Respondent’s operations as a contractor. From the credible evidence provided, the tribunal finds that Complainant completed the work on the invoices remaining; there were no workmanship issues; and that Respondent was paid for the drywall portions on the two remaining lots. The tribunal, at least in this forum, does not find Respondent’s reliance on the contract persuasive as the issues did not even pertain to the specific lot in question.

Therefore, 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 $30,689.00.

RECOMMENDED ORDER

IT IS RECOMMENDED that J P Kush Construction LLC’s license number 247343 be suspended until the Registrar receives proof that it has paid to Associated Finishes Inc. $30,689.00.

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 7, 2025.

/s/ Adam D. Stone

Administrative Law Judge

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

Tom Cole, Director

Registrar of Contractors

Jason Kush

J P Kush Construction LLC

[email redacted]

James Sparks

SPARKS LAW GROUP PLLC

[email redacted]

[email redacted]

By: OAH Staff