ALJDEC - Licensing

2024A-07476-NPC-ROC · Registrar of Contractors · 2024-12-05

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Northstar Communications Inc.,

COMPLAINANT,

v.

Ansco & Associates LLC

License No. ROC 341287,

RESPONDENT.

No. 2024A-07476-NPC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: November 15, 2024.

APPEARANCES:

For Complainant: Cody Nelson, joined by Ian Collier and Justin Single.

For Respondent: Craig Clark.

ADMINISTRATIVE LAW JUDGE: Samuel Fox

EXHIBITS ADMITTED INTO EVIDENCE: Administrative notice was taken of the Notice of Hearing Packet submitted by the Registrar of Contractors.

_____________________________________________________________________

FINDINGS OF FACT

Ansco & Associates LLC (Respondent) was the holder of License No. 341287, issued by the Arizona Registrar of Contractors (Registrar) on October 18, 2022.

On or about June 27, 2023, the Respondent entered a contract with Northstar Communications Inc. (Complainant) for underground boring and fiber placement for the City of Mesa amounting to $144,942.70.

The parties discussed restoration of the work sites in mid-August. On October 20, 2023, an inspector failed the restoration work. Between the inspection and Thanksgiving, Respondent communicated with Complainant about remediating the restoration work. The City of Mesa’s contract with Respondent required the restoration work to be completed within seven days. Complainant did some restoration work around November 27, 2023.

In December, an inspector failed the restoration again, notifying Respondent about the failure on January 3, 2024. The City of Mesa threatened to hold all future permits until the restoration was complete.

Respondent’s witness testified that he notified Complainant about the failed restoration but that Complainant did not respond. Respondent decided to withhold the final $7,000 payment; Respondent paid another contractor to complete the restoration.

On or about July 2, 2024, Complainant filed a Licensed Complaint Form with the Registrar, claiming Respondent had failed to pay $7,000.

On September 5, 2024, the Registrar issued a Citation, alleging that Respondent violated Arizona Revised Statutes (A.R.S.) § 32-1154(A)(10).

Respondent filed a timely answer to the Citation on July 15, 2024.

The matter was referred to the Office of Administrative Hearings for an administrative hearing. A hearing was held on November 15, 2024.

Complainant’s witnesses testified that they did not receive any written communications from Respondent regarding deficiencies. Complainant’s witnesses testified that under the contract, Respondent was required to provide written notice of any deficiencies. Complainant argued that Respondent did not have the right to withhold the $7,000 under the contract because Respondent failed to provide written notice.

Respondent testified that there was communication between the parties about the work deficiencies, but Respondent was not able to identify written notice.

The contract required Respondent to provide written notice of deficiencies before withholding payment for defective work.

The contract provided offsetting rights to Respondent.

The contract stated that time was of the essence; it required Complainant to comply with scheduling to complete work and request extensions in writing.

The contract stated that the value of the contract was for compliance and performance in accordance with the contract.

Administrative notice was taken of Respondent’s prior License record on December 3, 2024. According to that record, Respondent’s License No. 341287 was active, and the above-entitled matter was the only complaint against the license.

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.”

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.”

This Tribunal’s role is not to weigh competing contractual breaches, claims, and counterclaims. This process and venue are for license discipline, not contract dispute resolution. To prevail, a complainant must demonstrate by a preponderance of the evidence that money was due and unpaid for services rendered. While the amount “due” is based in contract, incomplete legal arguments about competing contractual rights may not prevail for implementing discipline, even if remedies would be available in another venue.

Incomplete work is a defense to a claim that that money was due for materials or services rendered; services not rendered do not require payment here.

The preponderance of the evidence established the following: Respondent did not provide written notice to Complainant about the deficiencies. Respondent did notify Complainant about the deficiencies. Complainant did not complete the project pursuant to the terms of the contract. Complainant was not timely in doing corrective work. Respondent was forced to pay another contractor to timely complete the work.

Complainant did not complete the project. Accordingly, the preponderance of the evidence failed to establish that Respondent owed Complainant all of the remaining $7,000 for completion of the project.

The preponderance of the evidence failed to support another amount owed.

Based on the foregoing, the Administrative Law Judge did not find grounds to impose discipline against Respondent’s license.

RECOMMENDED ORDER

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, December 5, 2024.

/s/ Samuel Fox

Administrative Law Judge

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

Tom Cole, Director

Registrar of Contractors

Ansco & Associates LLC

[email redacted]

Northstar Communications Inc.

Email [email redacted]

By: OAH Staff