ALJDEC decisions subject to certification as final

2016A-353-ROC · Registrar of Contractors · 2016-05-17

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: May 12, 2016, at 10:00 a.m. APPEARANCES: Neff Rental (hereinafter “Complainant”) appeared through its Tucson branch manager, Roberto Balli (hereinafter “Mr. Balli”). Conduit Express LLC (hereinafter “Respondent”) appeared through its member/qualifying party, Vernon Armstrong (hereinafter “Mr. Armstrong”). ADMINISTRATIVE LAW JUDGE: M. Douglas _____________________________________________________________________ FINDINGS OF FACT

1. Respondent is the hold of License Nos. 265772, 223122, 288377 and 281604 issued by the Registrar of Contractors (hereinafter “Registrar”). License Nos. 265772, 223122, 288377 and 281604 were all suspended until compliance on April 8, 2016. License No. 265722 was again suspended until compliance on April 29, 2016. 2. Complainant filed a Complaint against Respondent with the Registrar alleging that Respondent had failed to pay Complainant the total sum of $1,477.32 for the rental of construction equipment rendered to Respondent in connection with the Respondent’s operations as a contractor. 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. Balli testified that Respondent had failed to pay the amount due despite repeated demands that Respondent do so. Mr. Balli stated that the $1,477.32 was the principle sum due for the rental of the construction equipment rendered to Respondent. 5. Mr. Armstrong acknowledged that Respondent owed the sum of $1,477.32 to Complainant for the rental of construction equipment that Respondent utilized in its operations as a contractor. Mr. Armstrong testified that Respondent was no longer in business and that he had filed for personal bankruptcy. Mr. Armstrong acknowledged that Respondent had not filed for bankruptcy. 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 failed to pay Complainant the total sum of $1,477.32 for the rental of construction equipment rendered to Respondent in connection with the Respondent’s operations as a contractor. 5. Respondent failed to establish that it lacked the ability to pay Complainant for the rental equipment. Respondent failed to establish that it had not received sufficient monies as payment for the particular construction work project or operation for which the rental equipment was rendered. 6. Therefore, Complainant established that Respondent violated A.R.S. § 32-1154(A)(10) by failing to pay Complainant $1,477.32 for services/materials 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 revoke Respondent’s License Nos. 265772, 223122, 288377 and 281604, unless Respondent has provided to the Registrar, and the Registrar has accepted, documents that establish that Respondent has paid Complainant $1,477.32 in certified funds. It is further recommended that when and if the Registrar receives and accepts Respondent’s evidence that it has paid Complainant $1,477.32 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, May 17, 2016.

/s/ M. Douglas 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