ALJDEC - Licensing

2024A-08147-NPC-ROC · Registrar of Contractors · 2024-11-14

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Prism Millwork LLC,

COMPLAINANT

v.

Mon Tano Custom Homes LLC

License No. ROC 237350,

RESPONDENT

No. 2024A-08147-NPC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: October 30, 2024

APPEARANCES: Michael Peterson appeared on behalf of Complainant Prism Millwork LLC. William H. Kennedy appeared on behalf of Respondent Mon Tano Custom Homes LLC.

ADMINISTRATIVE LAW JUDGE: Adam D. Stone

EXHIBITS ADMITTED INTO EVIDENCE: Complainant’s Exhibits 1-6 and Respondent’s Exhibits 1-12 were admitted into evidence.

_____________________________________________________________________

FINDINGS OF FACT

On September 10, 2024, the Registrar of Contractors (“ROC”) issued a Notice of Hearing on Contested Case setting the above-captioned matter for hearing on October 30, 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 Mon Tano Custom Homes LLC on August 20, 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. 237350 issued by ROC. Alfred Montano Jr. is Respondent’s qualifying party and a member in the corporation.

Complainant is Prism Millwork LLC.

Complainant installed cabinetry in a project for which Respondent was the general contractor.

On July 19, 2024, Complainant filed with ROC a complaint against Respondent alleging that Respondent owed Complainant $14,890.70.

The hearing was convened on October 30, 2024. Michael Peterson, Seth Vose and Al Montano appeared as witnesses.

Mr. Peterson testified that during the work, a former business partner had departed and certain numbers may have not been accurate. However, at hearing, Mr. Peterson testified that via text message on November 24, 2023, that the amount due was $11,488.70.

Further, Mr. Peterson testified that it appeared he also forgot to include a credit of $3,850.00, which Respondent paid for a change order on a vanity.

Mr. Peterson also testified that any quality of work issues were still covered by warranty, and that Respondent never made any requests for him to come back to the property.

Mr. Vose testified that he installed most of the cabinets, and that he made repairs to the work as Mr. Montano requested.

Mr. Montano testified that there were delays, and that he believed that Complainant ran out of materials which led to poor work.

Also, Mr. Montano testified that there was no completion date, but that the project took too long. Mr. Montano testified too that Complainant had performed numerous other projects for him with no quality issues.

Further, Mr. Montano testified that he never provided a written notice to cure for the issues with the work. Mr. Montano testified that he knew the work issues were not going to get resolved so he went in a different direction to get the repairs made.

Mr. Montano testified that he had to pay another company (JTS) to make some repairs in the amount of $4,437.00.

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 amount due. at least for this licensing matter, is $7,638.70. If Mr. Montano believed that there were workmanship issues, he could have filed a workmanship complaint with ROC, or had Complainant to complete the work as it was still under warranty.

It was clear that Respondent has failed to pay any of the remaining balance due whether it was $14,890.70, $11,488.70, or $7,638.70. Simply put, zero payment was not acceptable.

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 $7,638.70.

RECOMMENDED ORDER

IT IS RECOMMENDED that Mon Tano Construction LLC’s license number 237350 be suspended until the Registrar receives proof that it has paid to Prism Millwork LLC $7,638.70.

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, November 14, 2024.

/s/ Adam D. Stone

Administrative Law Judge

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

Tom Cole, Director

Registrar of Contractors

William H. Kennedy

[email redacted]

Prism Millwork LLC

[email redacted]

By: OAH Staff