ALJDEC decisions subject to certification as final

06F-2382W-ROC · Registrar of Contractors · 2007-02-02

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: January 16, 2007. APPEARANCES: Phoenix Scaffolding and Equipment, Inc. was represented by its authorized employee, Sal Tortora. Marziale Enterprises, Inc. was represented by its authorized employee, Kristine Di Angelo. 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. Marziale Enterprises, Inc., doing business as All Cut Concrete Cutting (“Respondent”), is the holder of License No. 090319, a Class AE license, and License No. 090311, a Class C-05 license issued by the Registrar of Contractors. 2. Phoenix Scaffolding and Equipment, Inc. (“Complainant”) is the holder of License No. 085091, a contracting license issued by the Registrar of Contractors. 3. Complainant was a supplier of rental scaffolding to Respondent for a period of time. 4. Complainant filed a complaint against Respondent with the Registrar of Contractors. Complainant contends that Respondent owes it outstanding rental payments totaling $1,039.53. 5. On or about October 14, 2005, Respondent’s employee, Frank Fyda, made arrangements with Complainant for the rental of scaffolding for a project at Peoria High School. 6. Complainant contends that it never received the scaffolding back from Respondent or payment for the rental. 7. Respondent contends that it was unaware that the rental equipment had not been returned to Complainant until it received an invoice from Complainant for the rental with an outstanding balance owed. 8. Upon investigating the matter, Respondent’s position is that Mr. Fyda returned the subject rental scaffolding later the same day because conditions on the jobsite were unsafe for working. Mr. Fyda told his employer that he returned the scaffolding to Complainant’s facility on October 14, 2005. Mr. Fyda said he left the scaffolding with a non- English speaking employee of Complainant. Mr. Fyda did not obtain any paperwork from Complainant’s facility reflecting that he had returned the scaffolding. 9. Respondent’s dispatcher, Mell Epps, testified that he assigned Mr. Fyda to the Peoria High School jobsite on October 14, 2005. After the job was determined to be unsafe, Mr. Epps instructed Mr. Fyda to return the rented scaffolding to Complainant. Mr. Epps stated that he assumed that Mr. Fyda had returned the scaffolding, but he was not present with Mr. Fyda when the items were claimed to be returned. 10. Shaun Wood, an employee of Respondent, was assigned to work with Mr. Fyda on the day the scaffolding was rented. He testified that the project’s general contractor provided Respondent’s workers with alternative equipment located on site that day. Mr. Wood was not present when Mr. Fyda left the jobsite to return the scaffolding. 11. Complainant’s operations manager, Sal Tortora, testified that Mr. Fyda was aware of Complainant’s protocol for renting equipment and obtaining a receipt for the return of rental equipment. 12. Kristina Di Angelo, Respondent’s office manager, testified that there had been prior billing irregularities by Complainant and that Respondent’s employees had problems in the past with Complainant’s non- English speaking personnel. 13. The parties are found to have a bona fide dispute that should be resolved in a civil court of competent jurisdiction rather than before the Registrar of Contractors.

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) and (11), as cited in the Citation and Complaint issued by the Registrar of Contractors. The parties have a bona fide dispute.

RECOMMENDED ORDER

The Citation and Complaint in Case Nos. 06-2382 and 06-2382W are dismissed. 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, February 2, 2007

______________________________________ Brian Brendan Tully Administrative Law Judge

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

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

By ___________________________

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