ALJDEC - Licensing
2024A-12543-NPC-ROC · Registrar of Contractors · 2025-09-29
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
Charles Court Construction Inc.,
COMPLAINANT,
v.
Botta's Concrete Construction Corp
License No. ROC 135494 and 135493
RESPONDENT.
No. 2024A-12543-NPC-ROC
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: May 8, 2025, May 29, 2025, and September 9, 2025.
APPEARANCES: Brittany M. De Robertis, Esq. appeared on behalf of Charles Court Construction Inc. Jeffrey Botta appeared on behalf of Botta’s Concrete Construction Corp.
ADMINISTRATIVE LAW JUDGE: Velva Moses-Thompson
EXHIBITS ADMITTED INTO EVIDENCE: Charles Court Construction Inc.’s
Exhibits 1 through 7.
_____________________________________________________________________
FINDINGS OF FACT
1. On March 28, 2025, the Arizona Registrar of Contractors, (hereinafter “Registrar”), issued a Notice of Hearing setting the above-captioned matter for hearing on May 8, 2025 by the Office of Administrative Hearings (OAH) in Phoenix, Arizona.
2. 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 Botta’s Concrete Construction Corp. (hereinafter “Respondent”) may have violated Ariz. Rev. Stat. § 32-1154(A)(10) and Ariz. Rev. Stat. § 32-1183(A)-(B).
3. At hearing, Jodi Whitelaw and Barry Willits, Esq. testified on behalf of Charles Court Construction, Inc. (hereinafter “Complainant”). Jeffrey Botta testified on behalf of Respondent.
2. On or about June 19, 2023, Complainant and Respondent entered into a subcontract agreement wherein Complainant agreed to furnish labor and materials for at the JW Marriot construction project (hereinafter “the project”). Respondent was a subcontractor on the project and Complainant was a subcontractor of Respondent.
4. Complainant provided the labor and materials to Respondent pursuant to the contract.
5. On or about June 28, 2023, Complainant issued an invoice to Respondent for the work in the amount of $10,981.36.
6. Respondent did not pay the invoice.
7. On or about November 12, 2024, Complainant filed a complaint with the Arizona Registrar of Contractors (hereinafter “Registrar” or “ROC”) alleging that Respondent failed to pay Complainant for labor and materials furnished for the project, in the total amount of $10,981.36, when payment became due.
8. On March 11, 2025, the Registrar issued a Citation against Respondent’s license alleging that Respondent violated Ariz. Rev. Stat. § 32-1154(A)(10) and Ariz. Rev. Stat. § 32-1183(A)-(B).
9. Respondent filed a timely answer to the Citation.
10. The matter was referred to the Office of Administrative Hearings for an evidentiary hearing.
11. At hearing, Ms. Whitelaw, Complainant’s Accounting Administrator, explained that Complainant never received a payment from Respondent for the work performed at the project.
12. At hearing, Mr. Botta did not dispute that he was required to pay Complainant $10,981.36 for labor and materials that Complainant furnished to Respondent for the project. Mr. Botta contended that he wired a payment in the amount of $6,600.00 on February 3, 2025 to Complainant’s attorney, Barry Willits, Esq. Mr. Botta stated that he received Mr. Willits’s banking information in an email and thereafter issued a wire payment. However, Mr. Willits explained at hearing that he never received a payment from Respondent. The e-mail address that provided Mr. Botta with the banking information was from “[email redacted]”. However, Mr. Willits explained at hearing that his email address is “[email redacted]”, (Emphasis Added), and not “[email redacted]”. Additionally, it is undisputed that Mr. Botta received prior emails from Mr. Willits’s correct e-mail address: “[email redacted]” (Emphasis Added.) After Mr. Botta initially inquired with Mr. Willits for an “ACH” or “Wire” information, Mr. Willits responded, “Jeff: Not trying to make this difficult, but doing A C H or wire with email instructions is way too risky right now. Contractors all over town are being scammed. We need to effectuate this over phone, or let CCC pick up your check.” Nonetheless, Mr. Botta testified that he sent a wire payment to Complainant after receiving an advisement to prepare a check to be picked instead of effectuating a wire transfer.
13. Upon consideration of the evidence presented at hearing, the Administrative Law Judge finds that Respondent did not send payment in the amount of $6,600.00 to Complainant or Barry Willits through a wire transfer. It is unknown who received $6,600.00. There was no evidence presented at hearing that Respondent sent payment in the amount of $10,981.36 to Complainant when payment became due.
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 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. § 32-1183(A)-(B) provides that:
A. Notwithstanding the other provisions of this article, performance by a contractor, subcontractor or material supplier in accordance with the provisions of a construction contract entitles the contractor, subcontractor or material supplier to payment from the party with whom the contractor, subcontractor or material supplier contracts.
B. If a subcontractor or material supplier has performed in accordance with the provisions of a construction contract, the contractor shall pay to its subcontractors or material suppliers and each subcontractor shall pay to its subcontractors or material suppliers, within seven days of receipt by the contractor or subcontractor of each progress payment, retention release or final payment, the full amount received for such subcontractor's work and materials supplied based on work completed or materials supplied under the subcontract. Payment shall not be required pursuant to this subsection unless the subcontractor or material supplier provides to the contractor or subcontractor a billing or invoice for the work performed or material supplied in accordance with the terms of the construction contract between the parties. Each subcontractor or material supplier shall provide a waiver of any mechanic's or materialman's lien conditioned on payment for the work completed or material supplied. The contractor or subcontractor may require that such conditional waivers of lien be notarized. Any diversion by the contractor or subcontractor of payments received for work performed pursuant to a contract, or failure to reasonably account for the application or use of such payments, constitutes grounds for disciplinary action by the registrar of contractors. Violations of this section shall be grounds for suspension or revocation of a license or other disciplinary action by the registrar pursuant to section 32-1154, subsections B, C and D. The subcontractor or material supplier may notify the registrar of contractors and the owner in writing of any payment less than the amount or percentage approved for the class or item of work as set forth in this section.
9. 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.”
10. 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.
11. The preponderance of the evidence shows that Respondent violated Ariz. Rev. Stat § 32-1154(A)(10) as alleged.
12. The preponderance of the evidence shows that Respondent violated Ariz. Rev. Stat § 32-1183(A)-(B) as alleged.
13. Based upon Respondent’s violation of the provisions of Ariz. Rev. Stat § 32-1154(A)(10) and Ariz. Rev. Stat § 32-1183(A)-(B) grounds exist to impose discipline against Respondent’s license.
14. Because Ariz. Rev. Stat. § 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 or interest 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 Botta's Concrete Construction Corp License No. 135494 and No. 135493 issued by the Registrar until it has provided to Registrar, and the Registrar has accepted, documents that establish that it has paid Complainant $10,981.36 in certified funds.
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, September 29, 2025.
/s/ Velva Moses-Thompson
Administrative Law Judge
Transmitted by either mail, e-mail, or facsimile to:
Tom Cole, Director
Registrar of Contractors
Charles Court Construction Inc.
[email redacted]
Botta's Concrete Construction Corp
[email redacted]
Brittany M. De Robertis, Esq.
[email redacted]
By: OAH Staff