ALJDEC decisions subject to certification as final

08F-G0419-ROC · Registrar of Contractors · 2008-08-11

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: August 6, 2008 APPEARANCES: Complainant appeared through its administrator, Pam Heim (“Heim”) and Respondent was represented by its attorney, Nathaniel Rose. ADMINISTRATIVE LAW JUDGE: Mark A. Silver _____________________________________________________________________ Evidence and testimony were presented and, based upon the entire record in this matter, the following Findings of Fact, Conclusions of Law, and Recommended Order are made:

FINDINGS OF FACT

1. Complainant asserts that it rented specified heavy construction equipment to Respondent and the billing for said rentals has not been paid. Respondent denies that it was involved in these rentals and therefore, refused to pay the invoices that were issued in its name by Complainant. The facts surrounding this claim are discussed in the findings below.

2. There are three (3) invoices at issue in this matter, which were generated by Complainant. Complainant’s exhibit no. 2 is an invoice dated March 14, 2007 and it shows a rental of a tractor. It indicates the tractor was rented to Respondent and ordered by Adrianna. There is a purchase order notation on this invoice that shows WU05380. The amount of the invoice is $571.60.

3. The second invoice in question is Complainant’s exhibit no. 1 and is dated March 20, 2007. It is for a 210 excavator machine. The document shows that it was rented to Complainant and ordered by Lou. The purchase order number also shows Lou (instead of a number). The amount of this invoice is $2,268.89.

4. The third invoice in question involves damage to a piece of construction equipment. This invoice is Complainant’s exhibit no. 4. It is issued to Complainant for the cost to repair a specified piece of construction equipment which was retuned in a damaged state. The rental itself was represented in Complainant’s exhibit no. 3, which showed that the equipment was rented to Complainant, ordered by Adrianna, with a purchase order no. WG05404. Testimony presented at the hearing showed that the invoice for the rental shown in exhibit no. 3 was paid. Only the repair costs of $1,485.12, from exhibit no. 4 has not been paid.

5. Phil Garcia (“Garcia”), Complainant’s senior branch coordinator appeared at the hearing for Complainant and the salient portions of his testimony included the following:

a. Garcia is involved in facilitating all orders that come through his branch. b. He knew that Complainant and a company known as Wescor General (“Wescor”) shared office space and worked together. c. According to Garcia, Adriana placed orders for Respondent. He also stated that Lou was Wescor’s superintendant and that Lou would order equipment for Wescor. d. Although the invoice shown in Complainant’s exhibit no. 3 was paid, he did not know who paid it.

6. Heim presented testimony at the hearing and the salient portions of her testimony included the following:

a. Complainant had rented equipment to Wescor, but due to payment issues in the past, Wescor’s ability to rent from Complainant was terminated prior to the date of any of the invoices in question. b. She contends that Adriana contacted Complainant and asked to rent equipment for Wescor’s use, under Complainant’s name, and that Complainant would be responsible for payment on the equipment.

7. Adriana Salcido (“Adriana”), the Adriana mentioned in the foregoing paragraphs, appeared at the hearing and testified for Respondent. The salient portions of her testimony included the following:

a. She is employed by Respondent. Although she was employed by Respondent, at times she would order material and equipment for Wescor. When she ordered equipment from Complainant for Wescor, she claims that she made it clear that the order was for Wescor, and not Respondent. b. She denies that she ever advised Complainant that she was ordering equipment for Wescor, for which Respondent would be financially responsible. c. She indicated that Respondent does not typically use the type of large heavy duty construction equipment shown in the invoices in question.

d. She pointed out that the purchase orders shown on two of the invoices include a “W” and that indicates it was a Wescor purchase order. According to Adriana, all of Respondent’s purchase orders would show a “C.”

e. On the third invoice she pointed out that it shows it was ordered by Lou and Lou was a foreman for Wescor, not Respondent.

8. Steve Ayala (“Ayala”), Respondent’s qualifying party and member, appeared at the hearing and presented testimony. The salient portions of his testimony included the following:

a. On two of the invoices, which involved work on elementary school projects, Respondent did not perform any work on said jobsites. On the third invoice, which involved work on a mortuary, Complainant performed very minor concrete work, involving curbing and light pole bases. He indicated for this type of work Complainant would not have required the type of heavy equipment reflected in the applicable invoice. b. Wescor owes Complainant a substantial sum of money for several projects.

9. There is nothing in writing to show that Respondent was willing to accept responsibility for the payment of equipment to be used by Wescor. Both Haim and Adriana were found to be equally credible witnesses.

10. Based on the foregoing, it is determined and held that the sharply conflicting testimony from the parties was such that no basis exists for the disbelief of either side's position regarding whether or not Respondent authorized Complainant to rely on it for payment for the equipment that was used by Wescor. Therefore, Complainant did not sustain the requisite burden of proof necessary to establish that Respondent should be held responsible for the unpaid billings for equipment that was used by Wescor.

CONCLUSIONS OF LAW

1. Complainants have the burden of proof and must establish statutory violations by a preponderance of the evidence. A.A.C. R2-19-119. Proof by “preponderance of the evidence” means that it is sufficient to persuade the finder of fact that the proposition is “more likely true than not.” In re Arnold and Baker Farms, 177 B.R. 648, 654 (9th Cir. BAP (Ariz.) 1994). It “is evidence which is of greater weight or more convincing than the evidence which is offered in opposition to it; that is, evidence which as a whole shows that the fact sought to be proved is more probable than not.” Black’s Law Dictionary 1182 (rev. 6th ed. 1990).

2. Complainant failed to sustain his burden of proof to establish that Respondent violated the applicable charged sections of the State’s Contracting laws. Therefore, the evidence of record did not sufficiently sustain a finding of violations by Respondent of the provisions of A.R.S. §32-1154A, as charged in the Citation.

RECOMMENDED ORDER

Based on the foregoing, it is hereby recommended that this Citation (no. G08-0419), together with the Complaint upon which it is based, be 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 in this matter will be forty (40) days from the date of that certification.

Done this day, August 11, 2008.

______________________________________ Mark A. Silver Administrative Law Judge

Original transmitted by mail this ____ day of ____________, 2008, to:

Registrar of Contractors Fidelis V. Garcia 3838 N. Central Ave., Ste. 400 Phoenix, AZ 85012-1906

By ___________________________

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