ALJDEC decisions subject to certification as final

2017A-3119-NPA-ROC · Registrar of Contractors · 2017-10-02

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Ahern Rentals Inc.,

COMPLAINANT,

v.

William Robert Freeman

DBA: Oasis Waterproofing,

License No. CR-5.133673-D,

RESPONDENT.

No. 2017A-3119-NPA-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: September 25, 2017, at 10:00 a.m.

APPEARANCES: Ahern Rentals Inc. (“Complainant”) appeared telephonically through A.J. White, its Branch Manager, Phoenix location; William Robert Freeman DBA: Oasis Waterproofing appear telephonically on his own behalf.

ADMINISTRATIVE LAW JUDGE: Diane Mihalsky

_____________________________________________________________________

FINDINGS OF FACT

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 or about June 19, 2017, Complainant filed a complaint with the Registrar alleging that Respondent owed Complainant a total of $4,133.41 for equipment rental. Complainant attached to its complaint an invoice inquiry and rental invoices for three different jobs for which Respondent allegedly had not paid Complainant for equipment rental: (1) The Home Goods job in Tucson, in the amount of $2,237.46; (2) The Chandler Corporate Center job, in the amount of $1,351.32; and (3) The Scottsdale Terrace job, in the amount of $544.63.

On June 30, 2017, the Registrar issued a Citation for Alleged Violation of A.R.S. § 32-1154(A)(10) against Respondent.

On or about July 17, 2017, Respondent filed a written answer to the Citation, acknowledging that he had an account with Complainant and that Complainant had provided rental equipment for the three jobs, and alleging as follows:

5.1 Respondent explained that on the Home Goods job, Complainant was listed as a supplier and was paid either by joint check or directly from the general contractor on the job. Respondent attached to his written answer an Unconditional Waiver and Release on Final Payment signed by Complainant’s representative for the Home Goods job on June 9, 2016. .

5.2 Respondent stated that the same general contractor oversaw the Chandler Corporate Center job as oversaw the Home Goods job. Respondent stated that because Complainant was listed as a supplier, it must have been paid by the general contractor via joint check or directly. However, Respondent was awaiting a copy from the general contractor of Complainant’s signed lien release for the Chandler Corporate Center job.

5.3 Respondent acknowledged that through a clerical error, it had failed to make any payment on the amount due for the Scottsdale Terrace job.

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

A hearing was held on September 25, 2017. Complainant’s branch manager from its Phoenix office, A.J. White, testified on its behalf. Respondent testified on his own behalf.

Mr. White testified that he did not know whether Complainant had been paid in full for the Home Goods job. The Administrative Law Judge noted that the four invoices that Complainant had attached to its complaint for the Home Goods job were dated April 7, 2016, April 12, 2016, April 15, 2016, and May 10, 2016, before the June 9, 2016 signed Unconditional Waiver and Release on Final Payment.

Respondent reiterated his promise to pay Complainant for the rental equipment that he used on the Scottsdale Terrace job.

Respondent indicated that he had not been able to obtain a final lien release for Complainant’s rental equipment from the general contractor on the Chandler Corporate Center job. Although Respondent offered to resolve the complaint by paying Complainant for the Scottsdale Terrace job and the Chandler Corporate Center job, Mr. White was not authorized to settle the complaint in any lesser amount that the full amount alleged in the complaint.

Pursuant to A.A.C. R4-9-117, administrative notice is taken of Respondent’s license history at the Registrar’s public website. On this date, Respondent’s license was current and in good standing. Respondent’s license has been administratively suspended for lack of bond or non-renewal numerous times, has been suspended once for an NSP check, and has been suspended conditionally twice as discipline until it complied with the Registrar’s final order in two unrelated cases.

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 . . . .”

Respondent established that Complainant’s representative had signed an Unconditional Waiver and Release on Final Payment for the Home Goods job. Complainant did not establish that it was owed any other monies for the Home Goods job.

Respondent acknowledged that it owed Complainant $544.63 for rental equipment that Respondent used on the Scottsdale Terrace job.

Respondent acknowledged that it used Complainant’s rental equipment on the Chandler Corporate Center job. Respondent did not establish that Complainant was paid anything on this job.

Therefore, Complainant established that Respondent owed it a total of $1,895.95 for rental equipment on the Scottsdale Terrace job and the Chandler Corporate Center job, thereby furnishing cause to suspend or revoke Respondent’s license under A.R.S. § 32-1154(A)(10).

RECOMMENDED ORDER

Based on the foregoing, it is ordered that thirty days after the effective date of the final order in this matter, Respondent William Robert Freeman DBA: Oasis Waterproofing’s License No. CR-5.133673 shall be suspended until he provides satisfactory written proof to the Registrar that he has paid Complainant Ahern Rentals Inc. $1,895.95 by cashier’s or certified check.

It is further ordered that if before the effective date of the final order, Respondent provides satisfactory written proof to the Registrar that he has paid Complainant $1,895.95 by cashier’s or certified check, no license suspension shall take place and the Registrar shall close Case No. 2017-3119.

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, October 2, 2017

/s/ Diane Mihalsky

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors