ALJDEC decisions subject to certification as final

2013A-5243-ROC · Registrar of Contractors · 2015-09-25

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: September 9, 2015, at 8:00 a.m. APPEARANCES: Red Field Services, LLC dba BearCat Rentals (hereinafter “Complainant”) was represented by its attorney, Corey B. Larson, Esq. Post Fence Company, License No. CR14.207029-D (hereinafter “Respondent”) was represented by its attorney, Dan Post, Esq. ADMINISTRATIVE LAW JUDGE: M. Douglas _____________________________________________________________________

The hearing was convened to determine whether Respondent violated A.R.S. § 32-1154(A)(10) and A.R.S. § 32-1154(A)(16) as alleged by Complainant and as cited by the Registrar of Contractors. Evidence and testimony were presented and the following Findings of Fact, Conclusions of Law and Recommended Order are made: FINDINGS OF FACT Background and Procedure Respondent is the holder of License No. CR14.207029-D for fencing and License No. CR24.256028.D for ornamental metals issued by the Registrar of Contractors (hereinafter “Registrar”). This is a commercial matter where on or about November 6, 2013, Complainant filed a written complaint with the Registrar against the Respondent. Complainant alleged that Respondent had failed to pay Complainant the sum of $32,870.25 for equipment rental that Respondent had agreed to pay to Complainant pursuant to the terms of an alleged oral agreement between the parties. Complainant also alleged that that Respondent’s licenses did not allow the erection of retaining block walls, load-bearing walls, and retaining block walls over 7 feet high. Complainant alleged that Respondent had knowingly contracted beyond the scope of Respondent’s licenses because Respondent had erected retaining block walls, load-bearing walls and retaining block walls over 7 feet high. On May 13, 2015, the Registrar issued a Citation against Respondent for an alleged Violation of A.R.S. § 32-1154(A)(10).[1] On June 9, 2015, the Registrar issued a second Citation against Respondent for an alleged violation of A.R.S. § 32-1154(A)(16).[2] At the onset of the scheduled hearing Respondent acknowledged that it had violated the charged provision of A.R.S. § 32-1154(A)(16). Respondent asserted that the admitted violation was not intentional. Testimony David S. Barnett (hereinafter “Mr. Barnett”) testified that he is Complainant’s owner. Mr. Barnett said that he had previously been a licensed contractor. Mr. Barnett said that Respondent contacted him in August, 2012, and requestied a masonry contractor for a commercial project identified as the “Retreat Project.” Mr. Barnett said that he informed Respondent that he did not have a contractor’s license but that he could recommend Rogelio Rojo of Land of Enchantment Construction LLC (hereinafter “Land of Enchantment”) as a masonry contractor for the construction project. Mr. Barnett testified that Respondent asked him to bring his construction equipment to the jobsite so that the equipment could be utilized by Land of Enchantment. Mr. Barnett stated that he and the Respondent reached an oral agreement whereby Complainant would furnish construction equipment, including a dump truck, a cement mixer, a water trailer, a backhoe, a concrete saw, a small trailer with ramp, a transport trailer, and scaffolding for the “standard rate” for such rental equipment. Mr. Barnett said that he personally owned all of the equipment and that he would not have allowed their use if Respondent had not agreed to pay a standard rate for the use of the construction equipment. Mr. Barnett testified that he requested payment for the rental of his construction equipment in October and November 2012. Mr. Barnett said that Respondent repeatedly assured him that he would be taken care of. Mr. Barnett said that he was not paid for the use of his construction equipment and that in April, 2013, he was excluded from the jobsite. Mr. Barnett acknowledged that Complainant had been paid for repair work needed for some of the construction equipment. Mr. Barnett acknowledged that he had received approximately $6,000.00 for his personal work at the jobsite. Mr. Barnett denied that he had been an employee of Land of Enchantment. Mr. Barnett said that he “ran the job” for Respondent. Mr. Barnett acknowledged that his wife “handled” time sheets for Land of Enchantment. Mary Barnett (hereafter “Ms. Barnett”) testified that she agreed with Mr. Barnett’s testimony. Ms. Barnett said that she had heard Respondent say it would take care of the payment for Complainant’s equipment rental. Michael Quilici (hereinafter “Mr. Quilici”) testified that he was the supervisor for the general contractor for the Retreat Construction Project. Mr. Quilici said that he was at the jobsite on a daily basis. Mr. Quilici said that he was familiar with all of the construction equipment utilized at the construction site. Mr. Quilici said that he was told that the use of the backhoe was a “trade off.” Mr. Quilici said that he repeatedly asked for Complainant’s dump truck to be removed from the construction site because it was an old truck that did not appear to be getting any use. Mr. Quilici said that the general contractor furnished three concrete saws for the construction project and that he was unaware that a fourth saw had been supposedly furnished by Complainant. Mr. Quilici said that Mr. Barnett did not say anything to him about equipment rentals. Mr. Quilici opined that Respondent would have paid Complainant if in fact there had been an oral equipment rental agreement. Mr. Quilici’s testimony is found to be credible. Gabriella Rojo (hereinafter “Ms. Rojo”) testified that her husband owns Land of Enchantment. Ms. Rojo said that she believes that all of the equipment utilized at the construction project was owned by Mr. Barnett’s previous partner. Ms. Rojo acknowledged that she did not know whose name was on the titles of the construction equipment at the construction project. Ms. Rojo said that there was never anything said about renting the construction equipment. Ms. Rojo said that Mr. Barnett was paid on a weekly basis for his work at the construction project. Danial W. Post (hereinafter “Mr. Post”) testified that he is the Respondent’s owner. Mr. Post acknowledged that Respondent had performed construction work beyond the scope of Respondent’s licenses. Mr. Post said that Respondent subcontracted the masonry portion of its contract to Land of Enchantment. Mr. Post denied that he had an oral agreement with Complainant for equipment rental at the construction site. Mr. Post said that Land of Enchantment had a lump sum contract for its portion of the contract and that Land of Enchantment was required to pay for all materials, labor, and any other costs associated with performing the masonry portion of the construction agreement. Mr. Post denied that he had ever told Mr. Barnett that Respondent would ensure that Complainant would be paid for its equipment rentals. Mr. Post acknowledged that he purchased materials and resold them to Land of Enchantment at an increased cost. Mr. Post said that Respondent was entitled to do so because of the terms of Respondent’s written agreement with Land of Enchantment. Administrative notice is taken of Respondent’s prior license records as reflected on the Registrar of Contractors’ public website on September 24, 2015. Such prior license records reflects that License numbers CR14.207029- D (Fencing) and CR24.256028.D (Ornamental Metals) were current on said date. CONCLUSIONS OF LAW This matter lies within the Registrar’s jurisdiction. See A.R.S. § 32- 1154(A). The burden of proof at an administrative hearing falls to the party asserting a claim, right, or entitlement and the standard of proof on all issues in these matters is by a preponderance of the evidence. See A.A.C. R2-19-119. A preponderance of the evidence is “such proof as convinces the trier of fact that the contention is more probably true than not.” Morris K. Udall, Arizona Law of Evidence § 5 (1960). The preponderance of the evidence is insufficient and fails to support a finding that the Respondent entered into an oral agreement with Complainant to pay a “standard rate” for construction equipment utilized at the construction site, including a dump truck, a cement mixer, a water trailer, a backhoe, a concrete saw, a small trailer with ramp, a transport trailer, and scaffolding. Respondent had a written agreement with its subcontractor Land of Enchantment for a “lump sum” payment to Land of Enchantment for all labor and materials. This Tribunal concludes that the preponderance of the evidence is insufficient and fails to support a finding that Respondent has violated the charged provision of A.R.S. § 32-1154(A)(10). There was no dispute that Respondent violated the charged provision of A.R.S. § 32-1154(A)(16). RECOMMENDed order In view of the foregoing, it is recommended that commencing on the effective date of the Registrar’s Order, the License No. CR14.207029-D for fencing and License No. CR24.256028.D for ornamental Metals of Respondent Post Fence Company shall both be suspended for a period of fifteen (15) days. In the event of certification of this Administrative Law Judge Decision by the Director of the Office of Administrative Hearings, the effective date of the Order will be five days from the date of the certification Done this day, September 25, 2015.

/s/ M. Douglas Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director Registrar of Contractors

----------------------- [1] A.R.S. § 32-1154(A)(10) provides that the holder of a license or any person listed on a license pursuant to this chapter shall not commit the following act or omission:

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.

[2] A.R.S. § 32-1154(A)(16) provides that the holder of a license or any person listed on a license pursuant to this chapter shall not commit the following act or omission:

Knowingly contracting beyond the scope of the license or licenses of the licensee.

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