ALJDEC decisions subject to certification as final

2015A-1585-ROC · Registrar of Contractors · 2015-10-27

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: October 15, 2015 APPEARANCES: Lynne Welton (Welton), account manager of Ross Aerial Equipment dba Ross Equipment Rental and Sales appeared on behalf of Complainant. American Thermal Protection Corp. was represented by Oscar Lopez., its qualifying party and representative. ADMINISTRATIVE LAW JUDGE: Suzanne Marwil _____________________________________________________________________ FINDINGS OF FACT 1. Arizona Thermal Protection Corp. (Respondent) is the holder of License No. CR40.227742-D 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 to December 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. Welton testified that as of December 15, 2014, Respondent owed Complainant $18,150.00. 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 $500.00 per week. Welton said Complainant had received just over $1000 a month from Respondent but that Respondent still had an unpaid balance of $9,189.34. 5. Oscar Lopez testified on behalf of Respondent. He acknowledged that Respondent owed Complainant $18,150.00 and had made payments toward its account. He agreed that Respondent owed Complainant $9,189.34, which is an amount in excess of $750.00. 6. Jason Mandell also testified on behalf of Respondent. He indicated that the industry had experienced a downturn, leaving Respondent currently unable to pay Complainant the full amount owed. In support of his comments, he submitted the Respondent’s profit and loss statement showing that Respondent had operated at a significant loss for the period January-September 2015. 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 of $18,150.00, but still owed $9,189.34 to Complainant. 5. Respondent argued that it lacked the ability to pay Complainant for the work performed due to the downturn its industry had experienced, 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 $9,189.34 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 Arizona Thermal Protection Corp’s License No. CR40.227742-D issued by the Registrar until it has provided to the Registrar, and the Registrar has accepted, documents that establish that it has paid Complainant $9,189.34 in certified funds. It is further recommended that when and if the Registrar receives and accepts Respondent’s evidence that it has paid Complainant $9,189.34 in certified funds, the Registrar may close the Complaint in Case No. 2015- 1585. 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, October 27, 2015.

/s/ Suzanne Marwil Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director Registrar of Contractors -----------------------

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