ALJDEC decisions subject to certification as final

2017A-4066-NPC-ROC · Registrar of Contractors · 2017-11-08

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

United Rentals Northwest Inc,

COMPLAINANT,

v.

Paramount Welding LLC,

License No: 279237

RESPONDENT.

No. 2017A-4066-NPC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: October 23, 2017

APPEARANCES: Tara Miller, Attorney for Complainant; Craig Lockhorn, Complainant’s representative; Wade Mathias, Respondent’s representative; Brian Astemborski, observer

ADMINISTRATIVE LAW JUDGE: Dorinda M. Lang

_____________________________________________________________________

After filing a complaint against Respondent for failure to pay rental fees incurred for construction equipment, Complainant established that $31,283.02 in rental fees incurred in Respondent’s name remain unpaid. Respondent did not establish any affirmative defenses; however, Respondent’s license history is exemplary. Therefore, Respondent should be allowed an opportunity to avoid the imposition of any disciplinary action, if this is possible. Therefore, it is recommended that, prior to imposing a suspension, the Registrar allow Respondent 40 days from the effective date of the final order in this matter to settle the account with Complainant. If Respondent does so, it is recommended that no disciplinary action take place. If not, it is recommended that Respondent’s license be suspended until the account has been paid in full or Complainant informs the Registrar that the matter is settled.

FINDINGS OF FACT

Complainant filed a complaint with the Registrar of Contractors alleging that Respondent was in violation of A.R.S. § 32-1154(A)(10) because Respondent had failed to pay the rental fees for equipment rented for two constructions projects, the “Fairfield Inn” project and the “Boulders Club” project.

Respondent’s representative (hereinafter “Respondent”) did not dispute that the invoices have not been paid. He did not dispute that Complainant’s claim that the outstanding total due was $31,283.02 at the time of the hearing or that $4352.96 was the portion of the total due on the Boulders Club project.

Respondent testified that he rented equipment on the Boulders Club project for the general contractor because he, the general contractor, was not able to do so. Respondent stated that the general contractor was supposed to pay the rental fees but failed to do so and Respondent quit that job because the general contractor wasn’t paying.

Regarding the Fairfield Inn project, Respondent testified that he has not received all of the contract amount on the project and he expects the final amount that will be paid for his work there will total between $12,000 and $20,000, which represents the “retention” amount remaining in the contract funds. He opined that he would have to give up his right to sue the general contractor in order to obtain it, however.

According to Respondent’s testimony at hearing, the total contract price for the Fairfield Inn project was a little over $401,000, about $280,000 of which went to materials and around $150,000 was paid for labor. He stated that he has already paid out more than his contract amount so far.

Respondent also stated that his business troubles were complicated by personal troubles in early 2017 when his wife died of cancer and his only son died unexpectedly in April. He indicated that he is very concerned about potentially losing his business and is experiencing strong feelings of hopelessness.

He stated that he does not have the funds to pay Complainant’s invoices and he did not receive enough from the projects to pay them.

Respondent stated that he has always been able to work with Complainant in the past without problems.

Administrative notice is taken of the Respondent’s prior License record as reflected on the Registrar of Contractors public website on November 8, 2017. Such prior License record reflects no complaints, violations, or suspensions. Respondent has been licensed under his current license since June 2012.

CONCLUSIONS OF LAW

This matter is within the jurisdiction of the Registrar of Contractors pursuant to A.R.S. §§ 32-1104(A)(4), 32-1154(B) and 32-1156.

The Citation issued by the Registrar of Contractors in this matter alleged potential violation of A.R.S. § 32-1154(A)(10), which provides grounds for suspension or revocation of a contractor’s license for the following:

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.

The Registrar of Contractors may consider the prior record of a contractor in any disciplinary proceeding. A.A.C. R4-9-117. Respondent’s license history indicates that he has no prior complaints or lapses in bond coverage or license renewals. Due to his licensing history, any disciplinary action taken against his license should be imposed at the lowest level.

In this case, Complainant has established that Respondent violated A.R.S. § 32-1154(A)(10). Respondent argued that he does not have the funds to pay, and, while there was no reason to doubt his statement, he offered no documentary evidence to establish this. Even if established, however, Respondent did not dispute that he has received more payment on the Fairfield Inn project than his unpaid invoices would total for that job. Additionally, Respondent admitted that he quit the Boulders Club project. Consequently, he has no more payment that he may expect on that project and cannot argue that he did not receive sufficient money from that project to cover the amount remaining due to Complainant.

While there is a violation, Respondent’s circumstances warrant allowing him some time to seek out funding to avoid the reflection of a suspension in his license history.

Therefore, it shall be recommended that Respondent’s license be suspended only after 40 days have passed from the issuance of the Registrar’s final order in this matter or the certification of this decision if the Registrar fails to act. If, within that time, Respondent pays Complainant $31,283.02, or if the parties reach a settlement agreement, no suspension should take place. If Respondent fails to pay or settle the $31,283.02 by that date, Respondent’s license should be suspended until Complainant affirms that it has been satisfied.

RECOMMENDED DECISION

Based on the foregoing considerations, it is recommended that, starting 40 days after the effective date of the final order in this matter, Respondent’s license (License No: 279237) be suspended until Complainant affirms that the $31,283.02 debt has been satisfied. If Complainant affirms that the debt has been satisfied prior to the end of the 40 day period, it is recommended that the case be closed and that no further disciplinary action take place.

If the Director of the Office of Administrative Hearings certifies this Administrative Law Judge Decision, the effective date of the order will be five days from the date of certification.

Done this day, November 8, 2017.

/s/ Dorinda M. Lang

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors