ALJDEC decisions subject to certification as final

2015A-1584-ROC · Registrar of Contractors · 2015-12-01

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: November 18, 2015 APPEARANCES: Lynne Welton (Welton), account manager of Ross Aerial Equipment dba Ross Equipment Rental and Sales appeared on behalf of Complainant. No one appeared on behalf of Buehler Brothers Electric Inc. dba Watt Masters. ADMINISTRATIVE LAW JUDGE: Suzanne Marwil _____________________________________________________________________ FINDINGS OF FACT 1. Buehler Brothers Electric Inc. dba Watt Masters (Respondent) is the holder of License No. 147636 issued by the Registrar of Contractors (Registrar). 2. Ross Aerial Equipment dba Ross Equipment Rental and Sales (Complainant) filed a Complaint against Respondent with the Registrar alleging that Respondent had failed to pay its bills from Complainant from August 14, 2014, to October 22, 2014, for equipment provided. 3. The parties were unable to resolve their differences, and Complainant requested an administrative hearing. The Registrar then issued a formal Citation charging Respondent with a possible violation of A.R.S. § 32-1154(A)(10). 4. Respondent failed to appear at the time scheduled for hearing and did not request to appear telephonically. After the expiration of a 25 minute grace period, the Administrative Law Judge conducted the hearing in Respondent’s absence. 5. Welton testified that as of July 21, 2015, Respondent owed Complainant $3,267.48. She indicated that efforts were made to have Respondent pay that money back on a consistent basis, but no agreement was reached. She said Respondent acknowledged its debt and initially agreed to pay Complainant $300.00 per month. Welton said Complainant had last received $300.00 a month from Respondent in June 2015, but that Respondent still had an unpaid balance of $3,267.48. 6. On May 12, 2015, the Registrar received a letter from Thomas Buehler, president of Respondent, which stated: The complaint from Ross Equipment is valid. They are not alone. My business revenue has decrease significantly, along with some unexpected medical bills has made it difficult to pay our bills. I feel terrible that it has came [sic] to this point, however I have done my best to make payments, including selling some business and personal assets. I will continue to work at increasing my sales and paying my debts as soon as I possibly can. As summer approaches our business always increases as it has for the last 16 years. We are in no danger of going bankrupt, however, we just need a little more time to pay this debt to Ross. We have made a payment of $500 on 02/19/15 and another payment of $300 on 05/05/2015. I'm not sure of future revenues or ability to pay back, however I can pay a minimum of $300 every month until this debt is resolved. Is that agreeable?[1]

7. On June 24, 2015, the Registrar received Respondent’s written answer to the Citation, which said: Buehler Brothers Electric, Inc. does not refuse to pay Ross Aerial Equipment Rental. We are making payments to them. We are not paying as agreed because we are unable. The last three payments were $500 02/19, $300 05/06, and $300 on 06/22. We commit to making a minimum payment of $300 each month until the balance is paid in full. They are charging us interest on the balance. Unfortunately, we have not contracted any work for about nine months except for small service work so paying our bills has been a challenge to say the least. If we were able to take a loan out or put the balance on a credit card I would have already, Also note that Ross is not the only vendor that Buehler Brothers Electric owes money to.

I do not believe it is in the best interest for anyone that the ROC suspend or revoke Buehler Brothers Electric, Inc.’s license because it will inhibit our ability to pay Ross or any other vendors. Any negative marks on the license may deter business that can be used in the future to pay our bills. We have a clean record for 16 years and we intend to take care of our debts.

CONCLUSIONS OF LAW 1. 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. 2. 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). 3. 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.

4. The evidence established Respondent had made payments toward the invoiced total, but still owed $3,267.48 to Complainant. 5. Respondent argued to the Registrar that it lacked the ability to pay Complainant for the work performed due to a decrease in business revenue, but that it intended to pay Complainant back when it had the means to do so. Respondent did not suggest that its inability to pay stemmed from nonpayment on any of the jobs for which Complainant had provided equipment. 6. Therefore, Complainant established that Respondent violated A.R.S. § 32-1154(A)(10) by failing to pay Complainant $3,267.48 for services rendered in connection with Respondent’s contracting business. 7. Based upon Respondent’s violation of the provisions of A.R.S. § 32- 1154(A)(10), grounds exist to impose discipline against Respondent’s license. RECOMMENDed order Based on the foregoing, it is recommended that the Registrar suspend Buehler Brothers Electric Inc. dba Watt Masters s License No. 147636 issued by the Registrar until it has provided to the Registrar, and the Registrar has accepted, documents that establish that it has paid Complainant $3,267.48 in certified funds. It is further recommended that when and if the Registrar receives and accepts Respondent’s evidence that it has paid Complainant $3,267.48 in certified funds, the Registrar may close the Complaint in Case No. 2015- 1584. 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 40 days from the date of the certification. Done this day, December 1, 2015.

/s/ Suzanne Marwil Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director Registrar of Contractors ----------------------- [1] Administrative notice is taken of the Registrar’s file in this matter.

-----------------------

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