ALJDEC decisions subject to certification as final
2016A-4352-ROC · Registrar of Contractors · 2017-02-08
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
Neff Rental LLC,
COMPLAINANT,
v.
Gentry Estates LLC,
License No: 278337
RESPONDENT.
No. 2016A-4352-THE REGISTRAR
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: January 20, 2017
APPEARANCES: Pam Heim appeared on behalf of Neff Rental, LLC. No one appeared on behalf of Respondent.
ADMINISTRATIVE LAW JUDGE: Velva Moses-Thompson
_____________________________________________________________________
FINDINGS OF FACT
On November 30, 2016, the Registrar of Contractors (hereinafter “Registrar”) issued a Notice of Hearing setting the above-captioned matter for hearing at 8:30 a.m. on January 20, 2017, at the Office of Administrative Hearings in Phoenix, Arizona.
No representative for Respondent Gentry Estates LLC, (hereinafter “Gentry Estates”) appeared at the scheduled time and the matter was convened in its absence at about 8:50 a.m.
Respondent holds license number 278337 issued by the Registrar.
Pam Heim is an employee of Complainant Neff Rental LLC (hereinafter “Neff Rental”).
In May of 2016, Neff entered an agreement with Gentry Estates under which Complainant was to provide forklifts and boom lifts at the “Coyote Landing” project.
Complainant submitted to Gentry Estates six invoices from May through August of 2016 that were approved by Michael Patrick, Gentry Estate’s qualifying party.
On October 31, 2016, the registrar received a complaint filed by Neff Rental against Gentry Estates alleging that Gentry Estates had failed to pay its bills in the total amount of $9,405.13 for equipment provided at the project.
On November 19, 2016, Chris Schuler (hereinafter “Mr. Schuler”), an employee of Gentry Estates, filed an answer on behalf of Gentry Estates with the Registrar via electronic mail alleging that Neff Rental supplied deficient equipment and billed in excess of equipment supplied on a weekly or monthly basis. Gentry Estates also alleged that Neff Rental made no allowance for the defective equipment.
On November 8, 2016, the Registrar issued a Citation alleging that Gentry Estates may have violated Ariz. Rev. Stat. section 32-1154(A)(10).
At hearing, Ms. Heim testified that one of the boom lifts supplied malfunctioned but Neff Rental provided a replacement boom lift. Ms. Heim denied the allegations made by Gentry Estates that Neff Rental made no allowance for the defective equipment and billed in excess of equipment supplied.
Ms. Heim testified that Gentry Estates never paid Neff Rental.
Complainant was owed $9,405.13 at the time that the complaint was filed.
CONCLUSIONS OF LAW
A party asserting a claim, right, or entitlement bears the burden of proof; a party asserting an affirmative defense has the burden of establishing the affirmative defense. The standard of proof on all issues in this matter is that of a preponderance of the evidence. Ariz. Admin. Code § R2-19-119.
“At a hearing on an agency action to suspend, revoke, terminate or modify on its own initiative material conditions of a license or permit, the agency has the burden of persuasion.” Ariz. Rev. Stat. § 41-1092.07(G)(2).
A preponderance of the evidence is:
The 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.
Black’s Law Dictionary 1373 (10th ed. 2014).
Statutes should be interpreted to provide a fair and sensible result. Gutierrez v. Industrial Commission of Arizona, 226 Ariz. 395, 249 P.3d 1095 (2011)(citation omitted); State v. McFall, 103 Ariz. 234, 238, 439 P.2d 805, 809 (1968) ("Courts will not place an absurd and unreasonable construction on statutes.").
“Statutes shall be liberally construed to effect their objects and to promote justice.” Ariz. Rev. Stat. § 1-211(B).
The purpose of the Registrar’s licensing statutes is to protect the public from unscrupulous, unqualified, and financially irresponsible contractors. See Aesthetic Property Maintenance v. Capital Indem. Corp., 183 Ariz. 74, 900 P. 2d 1210 (1995).
Ariz. Rev. Stat section 32-1154(A) provides that:
The holder of a license or any person listed on a license pursuant to this chapter shall not commit any of the following acts or omissions: .... 10. Failure by a licensee or agent or official of 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.
8. 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.”
9. Payment for “[s]ervices rendered in connection with the licensee’s operations as a contractor” does not include interest, finance charges, lien charges, or other charges that are based solely on contract terms.
10. The preponderance of the evidence shows that Respondent violated Ariz. Rev. Stat section 32-1154(A)(10) as alleged.
ORDER
IT IS ORDERED that on the effective date of the final Order in this matter, Gentry Estates LLC’s license number 278337 number is revoked unless THE REGISTRAR receives and accepts written verification that Gentry Estates, LLC has paid to Neff Rental, LLC $9,405.13 in certified funds.
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 is forty days after the date of that certification.
Done this day, February 8, 2017.
/s/ Velva Moses-Thompson
Administrative Law Judge
Transmitted electronically to:
Jeffrey Fleetham, Director
Registrar of Contractors