ALJDEC decisions subject to certification as final

2015A-4795-ROC · Registrar of Contractors · 2016-03-16

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: March 4, 2016, at 8:00 a.m. APPEARANCES: Neff Rental Inc., (hereinafter “Complainant”) appeared through its authorized representative, Derek L. Taylor (hereinafter “Mr. Taylor”). Security Fence of Arizona Inc., (hereinafter “Respondent”) appeared through its qualifying party, Tim Carolan (hereinafter “Mr. Carolan”). ADMINISTRATIVE LAW JUDGE: M. Douglas _____________________________________________________________________ FINDINGS OF FACT 1. Respondent is the holder of License No. CR14.131359-D issued by the Registrar of Contractors (hereinafter “Registrar”). Respondent’s License was current on March 16, 2016. 2. Complainant filed a Complaint against Respondent with the Registrar alleging that Respondent had failed to pay Complainant the total sum of $2,667.67 for the rental of equipment supplied to Respondent for its operations as a contractor pursuant to Respondent’s application for credit with Complainant. 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. Mr. Taylor testified that he is the regional sales manager for Complainant. Mr. Taylor stated that Complainant rented equipment to Respondent for Respondent’s construction work at the Ajo overpass bridge. Mr. Taylor stated that Respondent became involved in a dispute with the general contractor for the construction project and failed to pay Complainant for the equipment rentals. Mr. Taylor said that Complainant provided the equipment for Respondent’s use in its operations as a contractor. Mr. Taylor said that Complainant would be more than happy with a payment plan but that Respondent had refused to pay anything until it resolved its dispute with the general contractor for the construction project. 5. Mr. Taylor’s testimony is found to be credible. 6. Mr. Carolan acknowledged that Respondent had rented equipment from Complainant for Respondent’s use in its operations as a licensed contractor. Mr. Carolan stated that Respondent does not dispute that it owes money to Complainant for the equipment rental. Mr. Carolan said that Respondent had not been paid by the general contractor and the City of Tucson. Mr. Carolan said that Respondent would pay Complainant as soon as it was paid for the construction project. Mr. Carolan said that the general contractor was responsible for the delay in payment. Mr. Carolan said that the general contractor approved change orders for the Ajo overpass bridge but refused to pay Complainant. Mr. Carolan said that Respondent has instituted legal action against the general contractor to obtain payment for its construction. Mr. Carolan said that Respondent wanted Complainant to wait until it resolved its dispute with the general contractor and the City of Tucson. Mr. Carolan said that Respondent was one of four subcontractors that had not been paid on the construction project. Mr. Carolan said that Respondent would pay Complainant regardless of the outcome of Respondent’s legal action with the general contractor. Mr. Carolan said that Respondent was asking Complainant to stand with Respondent in its legal action against the general contractor. 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 owes Complainant the sum of $2,667.67 for the rental of equipment that Respondent utilized in connection with Respondent’s operations as a contractor. 5. Respondent failed to establish that it lacked the ability to pay Complainant for the work performed. 6. Therefore, Complainant established that Respondent violated A.R.S. § 32-1154(A)(10) by failing to pay Complainant $2,667.67 for rental equipment 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 Respondent’s License CR14.131359-D issued by the Registrar until Respondent has provided to the Registrar, and the Registrar has accepted, documents that establish that Respondent paid Complainant $2,667.67 in certified funds. It is further recommended that when and if the Registrar receives and accepts Respondent’s evidence that it has paid Complainant $2,667.67 in certified funds, the Registrar may close the Complaint in this matter. 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 5 days from the date of the certification.

Done this day, March 16, 2016.

/s/ M. Douglas Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director Registrar of Contractors

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