ALJDEC - Licensing

2024A-12298-NPC-ROC · Registrar of Contractors · 2025-03-26

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Arizona Interiors and Millwork Inc.

COMPLAINANT

v.

M K B Construction and Repair LLC

License No. ROC 326070,

RESPONDENT

No. 2024A-12298-NPC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: March 11, 2025

APPEARANCES: Jay Pendergast appeared telephonically on behalf of Complainant Arizona Interiors and Millwork Inc. Mike Bennett appeared via Google Meet on behalf of Respondent M K B Construction and Repair LLC.

ADMINISTRATIVE LAW JUDGE: Adam D. Stone

EXHIBITS ADMITTED INTO EVIDENCE:

_____________________________________________________________________

FINDINGS OF FACT

On February 6, 2025, the Registrar of Contractors (“ROC”) issued a Notice of Hearing on Contested Case setting the above-captioned matter for hearing on March 11, 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 M K B Construction and Repair LLC on December 30, 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. 326070 issued by ROC.

Complainant is Arizona Interiors and Millwork Inc.

Complainant installed cabinets and countertops in a dental office for which Respondent was the general contractor.

On November 4, 2024, Complainant filed with ROC a complaint against Respondent alleging that Respondent owed Complainant $15,311.00.

The hearing was convened on March 11, 2025.

Mr. Pendergast testified that that final invoice was sent on or about July 7, 2024 and that there was a remaining balance of $15,311.00. Further, Mr. Pendergast testified that this was a sizeable job, which required more time than just the one week shut down by the dentist office. In addition, Mr. Pendergast testified that he did not receive the draws as outlined in the parties’ agreement, and while there were delays, the project was completely finished and looked great.

Mr. Bennett testified that Mr. Pendergast picked the week to shut down the dentist office and that he should have been ready to go with the cabinets, but we was not. Mr. Bennett testified that because of this, the project was delayed and that he had to have his workers available at the office on nights and weekends which cost him additional monies. Further, because of the delays, the project owner withheld his draw until the project was completed. Mr. Bennett testified that in all he believed that there should be a $9,200.00 credit to the final invoice.

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, while the project was delayed, it was fully completed, and there was no testimony as to any workmanship issues. Further, Respondent was fully paid on the project and did not provide any further evidence as to his inability to pay. There was no other evidence detailing the length of the project, and/or any penalties for not completing the same on time.

Therefore, the tribunal finds that the amount due, at least in this matter, is $15,311.00.

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 $15,311.00.

RECOMMENDED ORDER

IT IS RECOMMENDED that M K B Construction and Repair LLC’s license number 326070 be suspended until the Registrar receives proof that it has paid to Arizona Interiors and Millwork Inc. $15,311.00.

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, March 26, 2025.

/s/ Adam D. Stone

Administrative Law Judge

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

Tom Cole, Director

Registrar of Contractors

Arizona Interiors and Millwork Inc.

[email redacted]

M K B Construction and Repair LLC

[email redacted]

By: OAH Staff