ALJDEC - Licensing

2024A-10692-NPC-ROC · Registrar of Contractors · 2025-04-03

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Phoenix Scaffolding and Equipment Inc.,

COMPLAINANT

v.

Adanac Builders Corporation

License No. ROC 189034,

RESPONDENT

No. 2024A-10692-NPC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: March 20, 2025

APPEARANCES: Melinda Yarbro, Tony Sucato and Pebbles Moreno appeared via Google Meet on behalf of Complainant Phoenix Scaffolding and Equipment Inc. David Fix appeared via Google Meet on behalf of Respondent Adanac Builders Corporation.

ADMINISTRATIVE LAW JUDGE: Adam D. Stone

EXHIBITS ADMITTED INTO EVIDENCE: Complainant’s Exhibits 1-6 and Respondent’s Exhibit A was admitted into evidence.

_____________________________________________________________________

FINDINGS OF FACT

On January 8, 2025, the Registrar of Contractors (“ROC”) issued a Notice of Hearing on Contested Case setting the above-captioned matter for hearing on February 10, 2025, 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 Adanac Builders Corporation on November 8, 2024. A copy of the Notice of Hearing, as well as an Order containing the Google Meet information was mailed and e-mailed to Respondent’s addresses of record.

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. 189034 issued by ROC. David Fix is Respondent’s qualifying party and a member in the corporation.

Complainant Phoenix Scaffolding and Equipment Inc.

Complainant provided scaffolding on a project for which Respondent was the general contractor.

On September 19, 2024, Complainant filed with ROC a complaint against Respondent alleging that Respondent owed Complainant $7,486.34.

The hearing was convened on March 20, 2025.

Melinda Yarbro testified that on October 11, 2022, she issued invoice 17686 in the amount of $7,486.34 to Respondent and it remains unpaid. The time period for the rental was September 14, 2022 through October 7, 2022.

Ms. Yarbro testified that she was in e-mail communication with Mr. Fix, who acknowledged the debt. Ms. Yarbro also testified that Complainant decided against filing a lien on the project over worries that legal fees may become greater than the amount owed.

Mr. Fix testified that he did not dispute the debt. Mr. Fix testified, however, that he was not paid on the final draw and the retention draw which totaled approximately 1.5 million dollars. Because of this, he has filed a lawsuit against the property owner seeking to be paid, and Respondent is now struggling to stay in business as it does not even have a bank account.

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. However, based upon Mr. Fix’s testimony the tribunal finds that Respondent lacked the capacity to pay as it is still owed 1.5 million dollars on the project, and does not have the ability to pay at this time.

Therefore, the preponderance of the evidence shows that Respondent has a valid affirmative defense and has not violated section 32-1154(A)(10).

RECOMMENDED ORDER

IT IS RECOMMENDED that the Complaint in this matter be dismissed against Adanac Builders Corporation.

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, April 3, 2025.

/s/ Adam D. Stone

Administrative Law Judge

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

Tom Cole, Director

Registrar of Contractors

Phoenix Scaffolding and Equipment Inc.

[email redacted]

Adanac Builders Corporation

[email redacted]

By: OAH Staff