ALJDEC - Licensing
2024A-09354-NPC-ROC · Registrar of Contractors · 2024-12-24
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
Builder Services Group Inc.,
DBA: Gale Contractor Services,
COMPLAINANT
v.
Pinnacle Builders LLC
License No. ROC 312965,
RESPONDENT
No. 2024A-09354-NPC-ROC
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: November 7, 2024 with the record held open until December 9, 2024 for a Status Update as to payments made.
APPEARANCES: Shane Burginger appeared on behalf of Complainant Builder Services Group Inc. Ben Warner appeared on behalf of Respondent Pinnacle Builders LLC.
ADMINISTRATIVE LAW JUDGE: Adam D. Stone
EXHIBITS ADMITTED INTO EVIDENCE:
_____________________________________________________________________
FINDINGS OF FACT
On September 19, 2024, the Registrar of Contractors (“ROC”) issued a Notice of Hearing on Contested Case setting the above-captioned matter for hearing on November 7, 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 Pinnacle Builders 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. 312965 issued by ROC. Ben Warner is a member in Respondent’s corporation.
Complainant is Builder Services Group Inc.
Complainant provided spray foam insulation on several projects for which Respondent was installing garage doors.
On August 16, 2024, Complainant filed with ROC a complaint against Respondent alleging that Respondent owed Complainant $42,365.00.
The hearing was convened on November 7, 2024.
Mr. Burginger testified that the work was performed but the received zero payment from Respondent. He testified that the total amount due was $39,865.00.
Mr. Warner testified that he did not dispute the amounts owned, but that on one job, the Villafana Residence (the invoice totaled $13,738.00), he had yet to be paid.
Prior to the conclusion of the hearing Complainant agreed to provide Respondent until December 9, 2024 to pay the invoices. When Respondent failed to do so, Complainant again agreed to extend the deadline to December 18, 2024.
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 $26,127.00. Based on Mr. Warner’s testimony that he had not been paid on that job, it is an affirmative defense.
It was clear that Respondent has failed to pay any of the remaining balance due whether it was $42,365.00, $39,865.00, or $26,127.00. 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 $26,127.00.
RECOMMENDED ORDER
IT IS RECOMMENDED that Pinnacle Builders LLC’s license number 312965 be suspended until the Registrar receives proof that it has paid to Builder Services Group Inc., $26,127.00.
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, December 24, 2024.
/s/ Adam D. Stone
Administrative Law Judge
Transmitted by either mail, e-mail, or facsimile to:
Tom Cole, Director
Registrar of Contractors
Builder Services Group Inc,
DBA: Gale Contractor Services,
[email redacted]
Pinnacle Builders LLC
[email redacted]
By: OAH Staff