ALJDEC - Licensing
2024A-08933-NPC-ROC · Registrar of Contractors · 2024-11-14
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
Durafoam Roofing LLC,
COMPLAINANT
v.
Reyes Brothers Construction LLC
License No. ROC 324296,
RESPONDENT
No. 2024A-08933-NPC-ROC
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: November 1, 2024
APPEARANCES: Tim Forstie appeared telephonically on behalf of Complainant Durafoam Roofing LLC. Joseph Reyes appeared via Google Meet on behalf of Respondent Reyes Brothers Construction LLC.
ADMINISTRATIVE LAW JUDGE: Adam D. Stone
EXHIBITS ADMITTED INTO EVIDENCE:
_____________________________________________________________________
FINDINGS OF FACT
On September 17, 2024, the Registrar of Contractors (“ROC”) issued a Notice of Hearing on Contested Case setting the above-captioned matter for hearing on November 1, 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 Reyes Brothers Construction LLC on August 15, 2024.
Through the citation and Notice of Hearing, ROC alleges that Respondent may have violated Ariz. Rev. Stat. section 32-1154(A)(10).
Respondent held License No. 324296 issued by ROC. Joseph Reyes Respondent’s qualifying party and a member in the company.
Complainant is Durafoam Roofing LLC.
Complainant installed one inch thick urethane foam over a roof deck for a project in which Respondent was the general contractor. The contracted price was $6,108.00, and Respondent made a down payment of $1,200.00.
On August 6, 2024, Complainant filed with ROC a complaint against Respondent alleging that Respondent owed Complainant $4,908.00.
The hearing was convened on November 1, 2024.
Mr. Forstie testified that despite multiple requests, Respondent has not paid the remaining balance. Further, Mr. Forstie testified that he came out two additional times to make repairs for damage that was caused by another subcontractor or on different areas of the roof which were not a part of the contract.
Mr. Reyes testified that he did not dispute the amount owed but after two repairs, which caused significant damage, he had to hire a different contractor to make additional repairs. Mr. Reyes also testified that he lacked the capacity to pay as he was only paid approximately 75% of the contracted price.
Finally Mr. Reyes testified that he voluntarily relinquished his general contractor’s license and terminated his business at to a great loss to him.
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 in this matter, is $4,908.00. If Mr. Reyes believed that there were workmanship issues, he could have filed a workmanship complaint with ROC, yet he had Complainant back out to the property two additional times.
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 $4,908.00.
RECOMMENDED ORDER
IT IS RECOMMENDED that Reyes Brothers Construction LLC’s license number 324296 be suspended until the Registrar receives proof that it has paid to Durafoam Roofing LLC $4,908.00.
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, 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
Reyes Brothers Construction LLC
[email redacted]
Durafoam Roofing LLC
[email redacted]
By: OAH Staff