ALJDEC decisions subject to certification as final

2016A-3646-ROC · Registrar of Contractors · 2017-02-16

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Ross Aerial Equipment LLC,

COMPLAINANT,

v.

William Robert Freeman

dba Oasis Waterproofing,

License No. CR-5.133673-D

RESPONDENT.

No. 2016A-3646-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING DATES: December 29, 2016, at 8:30 a.m. and February 16, 2017, at 1:00 p.m.

APPEARANCES: Ross Aerial Equipment LLC (“Complainant”) appeared through Lynne Welton, its Credit Manager; William Robert Freeman dba Oasis Waterproofing (“Respondent”) appeared telephonically on his own behalf.

ADMINISTRATIVE LAW JUDGE: Diane Mihalsky

_____________________________________________________________________

FINDINGS OF FACT

Background and Procedure

On or about April 14, 1998, the Arizona Registrar of Contractors (“the Registrar”) issued License No. CR-5.133673-D for dual caulking, elastomeric and waterproofing only to Respondent.

Complainant rents various construction equipment and provides supplies to licensed contractors.

On September 19, 2016, Complainant filed a complaint with the Registrar alleging that Respondent owed Complainant $1,797.90 for equipment rental and propane billings used on a jobsite at 6803 S. Palo Avenue in Tucson, Arizona.

On October 3, 2016, the Registrar issued a Citation for Alleged Violation of A.R.S. § 32-1154(A)(10) against Respondent.

Respondent filed a timely written answer to the Citation, admitting that he had an account with Complainant, but denying that he had ever rented any equipment from Complainant.

The Registrar referred the matter to the Office of Administrative Hearings, an independent state agency, for an evidentiary hearing.

A hearing was held on December 29, 2016, and February 16, 2017. Complainant submitted three exhibits and presented the testimony of its credit manager, Ms. Welton. Respondent submitted one exhibit and testified on his own behalf.

Additional Hearing Evidence

Complainant submitted statements and invoices showing a charge of $1,476.65 for a 60’ straight boom between March 10, 2016, and March 18, 2016, and $195.80 for three propane tanks delivered during the same time period.

Complainant also submitted an unsigned statement that Ms. Welton testified was written by Rick McLain, the manager of Complainant’s Tucson office, that stated in relevant part as follows:

7:23 a.m. on 3-10-16 Bill with Oasis Waterproofing came to Ross Equipment Rentals at 3808 E. Golf Links Rd., Tucson, AZ 85713 to purchase propane, I Rick McLain asked him what [he] was using the propane for, he said it was for his floor machines, then I asked Bill when he was [here] where to drop the 60’ boom off at the Homegoods job at 6803 South Palo Verde Rd., Tucson and he told me to drop it off at the north east end of jobsite by building, boom was schedule[d] to be delivered by noon on 3-10-16. Bill also came in on 3-14-16 and 3-17-16 to purchase propane.

Complainant also submitted a telephone log from its counter employee, Veronica, stating that Oasis Water had ordered a 60’ boom for the Home Goods jobsite at 6803 S. Palo Verde, Tucson, to be delivered on March 10, 2016, at noon.

Complainant did not submit a signed delivery ticket for the 60’ boom.

Respondent acknowledged that he had ordered the propane from Complainant, but denied that he had ordered or used a 60’ boom from Complainant on the Home Goods job.

Respondent testified that he had called Complainant’s Tucson office several times to discuss equipment that was available to rent and pricing. Respondent explained that he needed an articulated boom, not a straight boom, for the Home Goods job. Respondent testified that Complainant only had a straight boom available and that Ahern Rentals offered better prices than Complainant.

Respondent submitted an invoice from Ahern Rentals for an articulated 60’ boom that was delivered on March 9, 2016, at 10:00 a.m. to the Home Goods jobsite at 6803 S. Palo Verde, and picked up on March 17, 2016, at 10:00 a.m., for a total charge of $1,819.77.

CONCLUSIONS OF LAW

This dispute lies within the Registrar’s jurisdiction to resolve.

Complainant bears the burden of proof to establish cause to discipline Respondent’s contractor’s license by a preponderance of the evidence. Respondent bears the burden of proof to establish affirmative defenses by the same evidentiary standard.

“A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.” A preponderance of the evidence is “[t]he greater weight of the evidence, not necessarily established by the greater number of witnesses testifying to a fact but by evidence that has the most convincing force; superior evidentiary weight that, though not sufficient to free the mind wholly from all reasonable doubt, is still sufficient to incline a fair and impartial mind to one side of the issue rather than the other.”

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 . . . .”

The unsigned statement from Mr. McLain and the telephone log from Veronica are hearsay. Although hearsay may be admitted in an administrative hearing, it should not be relied upon if it is not the kind of evidence that reasonable persons would rely upon in serious matters. The statement and telephone log are not the kind of evidence that reasonable persons would rely upon to penalize a contractor’s license and jeopardize his livelihood.

The Ahern invoice corroborated Respondent’s testimony that he did not rent a 60’ straight boom from Complainant for the Home Goods job because he rented a 60’ articulated boom from Ahern Rentals. Complainant therefore did not establish by a preponderance of the evidence that Respondent rented a 60’ straight boom from Complainant.

Although Respondent acknowledged that he purchased propane from Complainant that he had not yet paid for, the $195.80 owed for the propane is less than the $750.00 debt required to find a violation of A.R.S. § 32-1154(A)(10). Therefore, Complainant did not establish cause to suspend or revoke Respondent’s license under A.R.S. § 32-1154(A)(10).

RECOMMENDED ORDER

Based on the foregoing, it is recommended that on the effective date of the final order in this matter, Complainant Ross Aerial Equipment, LLC’s complaint in Case No. 2016-3646 against Respondent William Robert Freeman dba Oasis Waterproofing’s License No. CR-5.133673-D shall be dismissed.

In the event of certification of the Administrative Law Judge Decision by the Director of the Office of Administrative Hearings, the effective date of the Order will be five days from the date of that certification.

Done this day, February 16, 2017.

/s/ Diane Mihalsky

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors