ALJDEC - Licensing
2025A-02658-NPC-ROC · Registrar of Contractors · 2025-07-13
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
Canyon State Barricade Service LLC
COMPLAINANT,
v.
Arizona Professional Excavating LLC
License No. ROC 329534,
RESPONDENT.
No. 2025A-02658-NPC-ROC
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: July 2, 2025
APPEARANCES: Larry Herrera appeared on behalf of Canyon State Barricade Service LLC (hereinafter “Complainant”). Mark Deymonaz appeared on behalf of Arizona Professional Excavating LLC (hereinafter “Respondent”).
ADMINISTRATIVE LAW JUDGE: Velva Moses-Thompson
EXHIBITS ADMITTED INTO EVIDENCE: Exhibit A: the hearing packet consisting of 123 pages from the Arizona Registrar of Contractors (hereinafter “Registrar” or “ROC”). Respondent’s Exhibits 1 and 2.
_____________________________________________________________________
FINDINGS OF FACT
1. According to the Registrar’s public website, on July 2, 2022, the Registrar
issued License No. ROC 329534 for General Dual KA Dual Engineering to Respondent.
2. Mark Deymonaz (hereinafter “Deymonaz”) is a manager for Respondent.
3. Larry Herrera (hereinafter “Herrera”) is the General Manager for Complainant.
4. On April 9, 2025, Complainant filed a complaint with the Registrar alleging that
Respondent failed to pay Complainant $4,736.90, when payment became due for the excavating work that it provided to Respondent near 1331 E. Carefree Hwy and 12th St. & Carefree Hwy.
5. On May 20, 2025, the Registrar issued a Citation to Respondent for an alleged
violation of Arizona Revised Statutes (hereinafter “A.R.S.”) § 32-1154(A) (10).
6. Respondent filed a timely answer to the Citation.
7. The matter was referred to the Office of Administrative Hearings for an evidentiary hearing.
8. A hearing was held on July 2, 2025.
9. At hearing, Herrera testified on behalf of Complainant. Deymonaz testified on behalf of Respondent.
Testimony of Larry Herrera
10. Herrera stated that between May 20, 2024 and September 2, 2024, Complainant performed excavating work for Respondent. Herrera added that Complainant coordinated efforts to place traffic control near 1331 E. Carefree Hwy and 12th St. & Carefree Hwy. Complainant also performed work for two other contractors during the same time period in the same area. Herrera explained that Complainant sent invoices 00004273 and 0000365 to Respondent for its work, but Respondent has failed to pay $4,736.90. See Exhibit A, pgs.16-17 and 72adm.
11. Herrera explained that Complainant is unable to take a complete loss for the amount of labor and coordination that it provided to Respondent. Herrera stated that Respondent’s foreman, Corey Skogen, was responsible for assigning the work in the project. Herrera explained that Complainant determined the amount to bill Respondent after it determined its dates and times of service to the other developer. When asked by Deymonaz how Complainant determined which equipment belonged to a specific developer, Complainant stated that the developers provided their evidence of the dates that the developers worked and Complainant found the evidence to be reasonable and prudent. Herrera contended that Deymonaz did not become involved in the project until after it was finished and adjusted the “facts” of the actual project. Herrera explained that when calculating how much to bill a client, it tallies the units until the job is called off.
In Herrera’s closing statement, he clarified that Complainant was now demanding $7,426.36 that Herrera alleges the amount that Complainant and Respondent agreed upon.
Testimony of Mark Deymonaz
12. Deymonaz stated that Herrera originally provided unsigned contracts to the ROC with the incorrect company name. Deymonaz stated after he responded, Herrera provided unsigned contracts with the correct company name. Deymonaz added that there were no written contracts between Complainant and Respondent. There are no written agreements that verify that Respondent requested all of the work that Complainant performed. Deymonaz alleged that billing from Complainant is inconsistent and Complainant and engaged in double billing. Deymonaz stated that Respondent overpaid Complainant by approximately $1,500.00. See Exhibit A, pgs. 59-73. Deymonaz stated that Complainant billed Respondent for the same services that it provided to SS Development. See Exhibit 1. Deymonaz stated that he handles the billing for Respondent. Deymonaz also asserted that Herrera contradicted himself in the hearing. Deymonaz asked Herrera, “Did you ever have a conversation with anybody other than Arizona Professional Excavating and decide to leave equipment out without their approval?” [Emphasis Added]. Herrera answered “No.” Later in the hearing, Complainant testified that a guardrail was removed and as a result, the County requested that the right limb be kept up. Therefore, Complainant left equipment behind after it was called off.
13. Deymonaz also contended that the correct amount of invoice 00004273 is $851.40. See Exhibit A, pg. 71. Deymonaz did not dispute that Herrera dealt with Corey Skogen. However, Deymonaz reported that Corey reported to Deymonaz. Complainant did not work the amount of days that it alleged in the invoice 00004273. Deymonaz contended that because the job was called off on August 29th, Respondent is not responsible to pay for any work that Complainant performed on September 2, 2204. Herrera did not dispute that the job was called off on August 29th. Herrera only explained that the equipment was left because the County requested that the right limb be kept up.
14. Upon consideration of the evidence presented at hearing, the Administrative Law Judge finds that Exhibit A shows that contracts were sent to Respondent, but those contracts do not include Respondent’s signatures. Furthermore, there was no written evidence presented that Respondent agreed to the amount of work that Complainant purportedly provided according to the invoices.
15. The Administrative Law Judge finds that payment in the amount of $939.00 for invoice 0000365 did not become due because Respondent called off the job prior to the date of September 2, 2204 that is listed in the invoice. Herrera confirmed at hearing that Complainant bills up until the time that the job is called off. See Herrera’s testimony on the second hearing audio at 10:00 to 15:00 minutes.
16. The Administrative Law Judge further finds that because there is no written evidence regarding the amount of materials and labor that Respondent agreed to pay for, Complainant has not established that Respondent owes it $4,736.90, neither had respondent established that Complaint overbilled on other invoices that are not the subject of Complainant’s complaint. Respondent did not establish that Complainant owes Respondent at least $1,500.00. Nonetheless, it is undisputed that Respondent owes Complainant $851.40 for invoice 00004273. See Exhibit A, pg. 71 and Deymonaz’s testimony on the first hearing audio record at 15:00 to 20:00 minutes.
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. A.A.C. 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.” A.R.S. § 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).
The Administrative Law Judge may consider ROC’s administrative record.
See Ariz. Admin. Code § R4-9-118.
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.” A.R.S.. § 1-211(B).
The purpose of the ROC’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).
A.R.S. § 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.
9. A.R.S. § 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.” Emphasis Added.
10. The Administrative Law judge concludes that Complainant failed to meet its burden to establish that Respondent owed Complainant $4,736.90 for the excavation services that it provided to Respondent. Respondent failed to meet is burden to establish that the affirmative defense that Respondent overpaid Complainant on other invoices that were issued for the project. However, it is undisputed that Respondent owes Complainant $851.40 for invoice 00004273.
11. Therefore, Complainant has established by a preponderance of the evidence that Respondent violated A.R.S. § 32-1154(A) (10) as alleged.
12. The Administrative Law Judge finds grounds exist to impose discipline against Respondent’s license.
RECOMMENDED ORDER
Based on the foregoing, it is recommended that the Registrar suspend Arizona Professional Excavating LLC License No. ROC 329534 issued by the Registrar until it has provided to the Registrar, and the Registrar has accepted, documents that establish that it has paid Complainant $ 851.40 in certified funds.
It is further recommended that when and if the Registrar receives and accepts Respondent’s evidence that it has paid Complainant $851.40 in certified funds, the Registrar may close the Complaint in Case No. 2025A-02658.
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, July 13, 2025.
/s/ Velva Moses-Thompson
Administrative Law Judge
Transmitted by either mail, e-mail, or facsimile to:
Tom Cole, Director
Registrar of Contractors
Arizona Professional Excavating LLC
[email redacted]
Canyon State Barricade Service LLC
[email redacted]
By: OAH Staff