ALJDEC decisions subject to certification as final

06F-2370-ROC · Registrar of Contractors · 2007-04-03

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: March 15, 2007. APPEARANCES: B and B Excavating was represented by its authorized representative, Jim Bracy. Efficiency Mechanical II, Inc. was represented by its corporate officer, Kelley Kregal. ADMINISTRATIVE LAW JUDGE: Brian Brendan Tully _____________________________________________________________________ Based upon the evidence of record, the Administrative Law Judge makes the following Findings of Fact, Conclusions of Law and Recommended Order:

FINDINGS OF FACT

1. Efficiency Mechanical II, Inc. (“Respondent”) is the holder of License No. 088055, a Class C-39R contracting license issued by the Registrar of Contractors. 2. B & B Excavating (“Complainant”) is a backhoe/operator business. On special requests, Complainant will supply customers with equipment that is not in its inventory. In such cases, Complainant rents equipment from Empire Machinery and passes the rental costs on to its customers. 3. Complainant supplied Respondent with a mini excavator and skid steer 262B equipment, plus transport charges and two operators, on January 20, 2005. Complainant also supplied the two pieces of equipment and two operators on December 21, 22 and 23, 2005. 4. Respondent’s employees contend that they contacted Complainant on December 23, 2005 to pickup the two pieces of equipment because Respondent had completed one phase of it scope of work and took two weeks off for the holidays so that they would not be in the way of other trades performing work. Respondent intended to return to the jobsite and perform another phase of work. 5. On December 23, 2005, Respondent submitted Job Ticket No. 19970 to Complainant on Complainant’s form. Respondent made the following special request: “Mini Excavator requesting Juan to finish up.” Juan was Complainant’s operator at the time. He is not employed by Complainant at this time. 6. On December 28, 2005, one of Respondent’s workers received a telephone call from the general contractors requesting that a dirt pile be moved from a driveway to allow another trade access. Respondent’s worker contacted Complainant’s staff, who sent an operator and skid steer 262B to the jobsite on December 29, 2005. Complainant charged Respondent for one day rental plus transport fee, which was paid by Respondent. 7. Complainant subsequently charged Respondent for the mini excavator and skid steer rentals, without operators, for December 26-29, 2005, December 30, 2005, and January 2-6, 2006. Complainant also charged Respondent for rental of the mini excavator, without an operator, for December 29, 2005, which is the date that Respondent paid for the skid steer and operation to remove the pile of dirt, which it paid rental fees plus transport fees. Respondent has refused to pay for rentals on those dates claiming that it gave proper notice to Complainant to remove the equipment since it would not be working for two weeks. Complainant contends that Respondent’s staff notified it to stop the transport. 8. Respondent paid rental fees for the mini excavator and skid steer for January 9, 2006, which it paid. Respondent paid the equipment rental fees and the costs for two operators from January 10-19, 2006. Respondent also paid a transport and removal fee for removing the equipment on January 19, 2006. 9. Complainant had notice that Respondent was not using the equipment during the above described dates because none of its operators were assigned to operate the equipment for Respondent on those dates. 10. Exhibit 7 admitted into evidence is a letter dated March 9, 2006 from Respondent to Complainant. The letterhead lists Respondent’s name as “Efficiency Mechanical, Inc.” rather than the name appearing on its contracting license. Further, Respondent failed to list its contracting license number in the letter.

CONCLUSIONS OF LAW

1. The Registrar of Contractors has jurisdiction over Respondent and the subject matter in this case. 2. Pursuant to A.A.C. R2-19-119(B), Complainant has the burden of proof in this matter. The standard of proof is preponderance of the evidence. A.A.C. R2-19-119(A). 3. Respondent did not violate the provisions of A.R.S. § 32-1154(A)(7), as cited in the Citation and Complaint issued by the Registrar of Contractors. 4. Respondent did not violate the provisions of A.R.S. § 32-1154(A)(11), as cited in the Citation and Complaint issued by the Registrar of Contractors. 5. Respondent did violate the provisions of A.R.S. § 32-1154(A)(15), as cited in the Citation and Complaint issued by the Registrar of Contractors. 6. Respondent did violate the provisions of A.R.S. § 32-1154(A)(13), specifically A.R.S. § 32-1124(B), as cited in the Citation and Complaint issued by the Registrar of Contractors.

RECOMMENDED ORDER

Respondent’s License No. 088055 shall be placed on indefinite probation commencing on the effective date of the Order entered in this matter until the Registrar of Contractors has received written proof that Respondent had fully complied with the requirements of A.R.S. §§ 32- 1154(A)(7) and 32-1154(A)(13), specifically A.R.S. § 32-1124(B). If Respondent provides the Registrar of Contractors with written proof as above required on or before the effective date of the Order entered in this matter, then the above-provided indefinite probation shall not take place, and the Citation and Complaint in Case No. 06-2370 shall be closed. 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 40 days from the date of that certification. Done this day, April 3, 2007

______________________________________ Brian Brendan Tully Administrative Law Judge

Original transmitted by mail this ____ day of ____________, 2007, to:

Fidelis V. Garcia, Director Registrar of Contractors Legal Department 800 West Washington, 6th Floor Phoenix, AZ 85007

By ___________________________ -----------------------

Office of Administrative Hearings 1400 West Washington, Suite 101 Phoenix, Arizona 85007 (602) 542-9826