ALJDEC - Licensing

2025A-01482-NPC-ROC · Registrar of Contractors · 2025-06-11

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Southwest Dumpster,

COMPLAINANT

v.

Energy Choice Insulation LLC,

License No. ROC 340222,

RESPONDENT

No. 2025A-01482-NPC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: May 28, 2025

APPEARANCES: Blake Szarka appeared on behalf of Complainant Southwest Dumpster. Justin Fish appeared on behalf of Respondent Energy Choice Insulation LLC.

ADMINISTRATIVE LAW JUDGE: Adam D. Stone

EXHIBITS ADMITTED INTO EVIDENCE:

_____________________________________________________________________

FINDINGS OF FACT

On April 16, 2025, the Registrar of Contractors (“ROC”) issued a Notice of Hearing on Contested Case setting the above-captioned matter for hearing on May 28, 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 Energy Choice Insulation LLC on March 26, 2025. 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. 340222 issued by ROC.

Complainant provided dumpster and hauling services on numerous projects for which Respondent was the general contractor.

On April 11, 2025, Complainant filed with ROC a complaint against Respondent alleging that Respondent owed Complainant $7,947.50.

Mr. Szarka testified that he performed delivered the dumpsters and provided the services as agreed, and issued the following invoices:

Invoice 15335 in the amount of $580.00 on June 5, 2024.

Invoice 15362 in the amount of $1,381.25 on June 24, 2024.

Invoice 15418 in the amount of $4,131.25 on August 23, 2024.

Invoice 15467 in the amount of $1,855.00 on September 13, 2024.

Mr. Szarka also testified that invoice 15335 was subsequently paid after filing of this action, bringing the unpaid balance to $7,367.50. Further, Mr. Szarkat testified that prior to filing the Complaint he offered Respondent a settlement of $7,200.00, however, that was denied.

Mr. Fish testified that he acknowledged that he owed the full amount on invoices 15362, and 15467, however, he refused to pay the full amount on invoice 15418, as he did not receive the size dumpster (40 yard), he requested. Too, he offered a settlement in the amount of $2,500.00 to attempt to resolve the matter.

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 delivered and work performed in connection with Respondent’s operations as a contractor. From the credible evidence provided, the tribunal finds that the Complainant performed the services, and Respondent had failed to pay.

Mr. Fish acknowledged that invoices 15362 and 15467 were correct and have not been paid. As to Invoice 15418, while Mr. Fish believed he was to receive 40 yard dumpsters for the duration of the project, he only received the same once. However, he had the 30 yard dumpsters delivered and used the same at least 3 times (not including switch outs), without cancelling the agreement. Therefore, Mr. Fish would owe the full amount of that invoice as well.

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 $7,367.50.

RECOMMENDED ORDER

IT IS RECOMMENDED that Energy Choice Insulation LLC’s license number 340222 be suspended until the Registrar receives proof that it has paid to Southwest Dumpster $7,367.50.

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, June 11, 2025.

/s/ Adam D. Stone

Administrative Law Judge

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

Tom Cole, Director

Registrar of Contractors

Southwest Dumpster

[email redacted]

Energy Choice Insulation LLC

[email redacted]

By: OAH Staff