ALJDEC decisions subject to certification as final

2015A-767-ROC · Registrar of Contractors · 2015-10-27

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: October 15, 2015 APPEARANCES: Mike Madge, vice president of Southwest Industrial Rigging, appeared on behalf of Complainant. No one appeared on behalf of Reclamation Sciences, LLC. ADMINISTRATIVE LAW JUDGE: Suzanne Marwil _____________________________________________________________________ FINDINGS OF FACT 1. Reclamation Sciences LLC (Respondent) is the holder of License No. A- 259462-C issued by the Registrar of Contractors (Registrar). 2. Southwest Industrial Rigging (Complainant) filed a Complaint against Respondent with the Registrar alleging that Respondent had failed to pay Complainant the total sum of $14,326.22 for cranes and crane operator work it had provided on three different jobsites. 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 20 minute grace period, the Administrative Law Judge conducted the hearing in Respondent’s absence. 5. Michael Madge offered the only testimony in this matter. He indicated that on June 25, 2014, Complainant furnished Respondent a crane and crane operator services at the Paramount Petroleum project and sent Respondent an invoice for $12,488.50, which has not been paid. He commented that in Respondent’s answer to the Complaint which is part of the Registrar’s file in this matter[1], Respondent “concedes that [Complainant] performed the work as directed by Respondent for a total of $12,488.50.” 6. Madge noted that on August 1, 2014, Complainant provided crane and crane operator services at the GM proving ground and sent Respondent an invoice for $674.10 which has not been paid. 7. Madge indicated that on August 6, 2014, Complainant again provided crane and crane operator services at the GM proving ground and sent Respondent an invoice for $1,163.62 which has not been paid. As before in its answer to the Complaint, Respondent “concedes that [Respondent] provided such materials and services for a value of $1163.62.” 8. In its answer to the Complaint, Respondent argued that it is entitled to an offset of monies owed to the Complainant due to damages Respondent caused it to incur on another project not contained in the Complaint. Complainant disputed these allegations. 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 not made any payment toward the invoiced total of $14,326.22. 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 $14,326.22 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 Reclamation Sciences LLC’s License No. A-259462-C issued by the Registrar until it has provided to the Registrar, and the Registrar has accepted, documents that establish that it has paid Complainant $14,326.22 in certified funds. It is further recommended that when and if the Registrar receives and accepts Respondent’s evidence that it has paid Complainant $14,326.22 in certified funds, the Registrar may close the Complaint in Case No. 2015- 767. 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 ----------------------- [1] The Tribunal took administrative notice of the Registrar’s file at hearing.

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