ALJDEC - Licensing

2024A-10877-NPC-ROC · Registrar of Contractors · 2025-01-27

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

AmeriWater,

COMPLAINANT,

v.

A & M Refrigeration LLC

License No. ROC 311700,

RESPONDENT.

No. 2024A-10877-NPC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: January 6, 2025

APPEARANCES: Barbara Gillen appeared on behalf of AmeriWater. No one appeared on behalf of A & M Refrigeration, LLC.

ADMINISTRATIVE LAW JUDGE: Velva Moses-Thompson

_____________________________________________________________________

FINDINGS OF FACT

On December 3, 2024, the Registrar of Contractors, (Registrar or ROC),

issued a Notice of Hearing setting the above-captioned matter for hearing on January 6, 2025, by the Office of Administrative Hearings in Phoenix, Arizona.

A & M Refrigeration, LLC (Respondent) holds license number 311700

issued by the Arizona Registrar of Contractors (Registrar).

Arturo Sanchez is the qualifying party for Respondent.

The Notice of Hearing shows that the hearing was set to consider the

charges made in the Citation and Complaint.

Through the Citation, the Registrar alleges that Respondent may have

violated Ariz. Rev. Stat. section 32-1154(A)(10).

A hearing was held on January 6, 2025.

At hearing, Barbara Gillen and Dennis Mahoney testified on behalf of

Respondent. Mr. Mahoney owns Respondent. Ms. Gillen is an employee of Respondent.

AmeriWater (Complainant) sold equipment to Respondent for the amount of

$60,000, in connection with Respondent’s activities as a contractor.

The systems were installed in a J.P. Morgan Chase bank after Respondent

received them. A consultant hired by J.P. Morgan Chase verified that the systems were functioning properly.

Complainant issued an invoice to Respondent for the systems in the

amount of $60,000 for the systems.

Respondent did not pay Complainant for the equipment.

On September 18, 2024, Complainant filed a complaint with the Registrar

alleging that Respondent failed to pay for materials provided to Respondent.

Complainant received a $10,000 payment toward the invoice after the

complaint was filed.

On November 8, 2024, the Registrar issued a Citation against

Respondent’s license.

Respondent filed a timely answer to the Citation.

The matter was referred to the Office of Administrative Hearings for an

evidentiary hearing.

Dennis Mahoney, the owner of Complainant, testified on behalf of

Complainant. Barbara Gillen also testified on behalf of Complainant.

Respondent did not request to appear telephonically and did not request

that the hearing be continued. Although the start of the duly noticed hearing was delayed approximately 15 minutes, Respondent did not appear, through an authorized member, employee, or attorney, and did not contact the Office of Administrative Hearings to request that the start of the hearing be further delayed. Consequently, Respondent did not present any evidence to defend its license.

CONCLUSIONS OF 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 Administrative Law Judge may consider Registrar’s administrative record. See Ariz. Admin. Code § R4-9-118.

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).

Ariz. Rev. Stat § 32-1154(A) provides that:

The holder of a license or any person listed on a license pursuant to this chapter shall not commit any of the following acts or omissions: .... 10. Failure by a licensee or agent or official of a 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.

8. Ariz. Rev. Stat § 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 . . . 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.”

9. Payment for “[s]ervices rendered in connection with the licensee’s operations as a contractor” does not include interest, finance charges, lien charges, or other charges that are based solely on contract terms.

10. The preponderance of the evidence shows that Respondent violated Ariz. Rev. Stat § 32-1154(A)(10) as alleged.

11. Based upon Respondent’s violation of the provisions of Ariz. Rev. Stat § 32-1154(A)(10), grounds exist to impose discipline against Respondent’s license.

12. Because A.R.S. § 32-1154(A)(10) only includes a licensee’s failure to pay for

materials or services rendered in connection with the licensee’s operations as a contractor, not late fees, interest, or other consequential or contractual damages, the Administrative Law Judge does not recommend that Respondent be required to pay late fees as a condition of keeping its contractor’s license in good standing.

RECOMMENDed order

Based on the foregoing, it is recommended that the Registrar suspend A & M Refrigeration LLC License No. ROC 311700 issued by the Registrar until it has provided to the Registrar, and the Registrar has accepted, documents that establish that it has paid Complainant $50,0000 in certified funds.

It is further recommended that when and if the Registrar receives and accepts Respondent’s evidence that it has paid Complainant $50,0000 in certified funds, the Registrar may close the Complaint in Case No. 2024A-10877.

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, January 27, 2025.

/s/ Velva Moses-Thompson

Administrative Law Judge

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

Tom Cole, Director

Registrar of Contractors

AmeriWater

[email redacted]

A & M Refrigeration LLC

[email redacted]

By: OAH Staff