FINACT2018A-1677-NPC-ROC.pdf

2018A-1677-NPC-ROC · Registrar of Contractors · 2018-11-05

REGISTRAR OF CONTRACTORS OF THE STATE OF ARIZONA

A to Z Equipment Rental & Sales, Case No. 2018-1677 COMPLAINANT, Docket No. 2018A-1677-ROC v. FINAL ADMINISTRATIVE DECISION J & R Construction, LLC, AND ORDER License No. ROC 316956, RESPONDENT.

Under A.R.S. § 41-1092.08(B), the Registrar may review and accept, modify, or reject an administrative law judge’s written decision. If the Registrar modifies or rejects that decision, then the Registrar must provide written justification setting forth the reasons for the modification or rejection. REGISTRAR’S ACCEPTANCE In this case, a hearing was held, and the administrative law judge issued a written decision. See Administrative Law Judge Decision, attached. The Registrar reviewed that decision and hereby accepts it. CONCLUSION Because the Registrar has accepted the administrative law judge’s decision, that decision is the final administrative decision in this case and becomes effective on December 12, 2018. FINAL NOTE On page 2, line 28, the Registrar replaces, “February 28, 2018” with “August 30, 2018” as the date Respondent’s license was suspended.

of 2 REGISTRAR OF CONTRACTORS 1700 W. Washington St. Suite 105 – Phoenix, AZ 85007-2812 Telephone (602)542-1525 1-877-692-9762 Dated November 2, 2018.

Registrar of Contractors /s/ Nicole Sornsin Nicole Sornsin Assistant Director, Legal and Recovery Fund Copy mailed via USPS First Class mail November 2, 2018 to: Respondent J & R Construction LLC 14015 W La Reata Ave Goodyear, AZ 85395-1478 Complainant A to Z Equipment Rental & Sales 1313 E Baseline Rd Gilbert, AZ 85233 AND copy electronically mailed this same date to: Respondent at email address on record with the Registrar Complainant at email address on record with the Registrar

Office of Administrative Hearings Roger A. Geddes, Administrative Law Judge Case No. 2018-1677 / AN

of 2 REGISTRAR OF CONTRACTORS 1700 W. Washington St. Suite 105 – Phoenix, AZ 85007-2812 Telephone (602)542-1525 1-877-692-9762 RECEIVED 10.12.2018 ROC LEGAL

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

A to Z Equipment Rental AND Sales, No. 2018A-1677-NPC-ROC

COMPLAINANTS , ADMINISTRATIVE LAW JUDGE DECISION v.

J & R Construction LLC, License No: 316956

RESPONDENT.

HEARING: September 25, 2018, 1:00 P.M. APPEARANCES: Karen Speros, Accounts Receivable Manager, appeared on

behalf of Complainant; no appearance was made on behalf of Respondent

ADMINISTRATIVE LAW JUDGE: Roger A. Geddes

_____________________________________________________________________

FINDINGS OF FACT

BACKGROUND AND PROCEDURE

1. J & R Construction, LLC, (Respondent), is the holder of License Number 316956 issued by the Registrar of Contractors (Registrar). 2. On or about April 10, 2018, A to Z Equipment Rental AND Sales (Complainant) filed a Complaint against Respondent with the Registrar alleging that Respondent owed Complainant the sum of $8,588.05.00. This amount represented various unpaid invoices relating to rental of equipment to Respondent and amounts billed by Complainant for damage to equipment allegedly caused by Respondent. 3. On April 24, 2018, the Registrar then issued a Citation for Alleged Violation of A.R.S. § 32-1154(A)(10) for the alleged failure by Respondent to pay monies in excess of $750.00 when due for materials or services rendered in connection

with Respondent’s operations as a contractor. The Registrar referred the matter to the

Office of Administrative Hearings 1740 West Adams Street, Lower Level Phoenix, Arizona 85007 (602) 542-9826 RECEIVED 10.12.2018 ROC LEGAL

Office of Administrative Hearings, an independent state agency, for an evidentiary hearing. 4. The Registrar issued a Notice of Hearing that set a hearing for July 3, 2018, at 10:00 A.M. The Registrar mailed a copy of the Notice of Hearing to Respondent on or about May 25, 2018, at its address of record. 5. The Notice of Hearing informed the parties that “[f]ailure to attend the scheduled hearing is likely to result in an adverse ruling against you.” The Notice of Hearing further advised of the procedure for requesting a continuance of the hearing. 6. The matter was continued several times, the last of which was a continuance to September 25, 2018, at 1:00 P.M. A notice of the continuance was emailed to Respondent at its email address of record on July 23, 2018. 7. At the September 25, 2018, hearing, Complainant presented the testimony of Karen Speros, Accounts Receivable Manager. No appearance was made

on behalf of Respondent. The Tribunal received and admitted Complainant’s exhibit

numbers 1 - 4.1

8. Although the commencement of the hearing was delayed approximately

15 minutes, Respondent did not appear at any time during the hearing through an authorized officer, employee, attorney, or any other person. Consequently, Respondent did not present any evidence to defend its license. Respondent further did not request to appear telephonically and did not request that the hearing be continued. 9. Karen Speros testified on behalf of Complainant that the parties had reached a settlement in the amount of $6,339.96 which represented the total invoices for the rentals, which Respondent had not paid. She testified that Complainant reduced the original amount sought by deducting amounts for Respondent’s alleged damage to the equipment. 10. Pursuant to Arizona Administrative Code Rule 4-9-117, administrative notice is taken of the Registrar’s public website. On February 28, 2018, Respondent’s

1 The Tribunal also took administrative notice of the Registrar’s file. RECEIVED 10.12.2018 ROC LEGAL

License No. 316956 was suspended. The administratively suspended status of Respondent’s license is considered as a factor in aggravation of any determination of discipline. CONCLUSIONS OF LAW 1. The Registrar has jurisdiction over this matter, pursuant to A.R.S. § 32- 1101, et seq., which authorizes the Registrar to impose disciplinary sanctions against licenses for violations of A.R.S. § 32-1154. 2. The copy of the Notice of Hearing that the Registrar mailed to Respondent at its address of record and the continuance notice emailed to Respondent at its email address of record were reasonable and Respondent is deemed to have received notice of hearing. A.R.S. §§ 41-1092.4 and 41-1092.05(D). 3. The administratively suspended status of Respondent’s license does not deprive Complainant of the right to prosecute a Complaint against Respondent or

prevent the Registrar from determining the merits of Complainant’s complaint. See

A.R.S. § 32-1154(D) (“The expiration, cancellation, suspension or revocation of a

license . . . shall not deprive the registrar of jurisdiction to proceed with any

investigation of or action or disciplinary proceeding against such license, or to render a decision suspending or revoking such a license . . .”). 4. 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 preponderance of the evidence. See Arizona Administrative Code Rule 2- 19-119. 5. To warrant such sanctions by the Registrar, a Complainant must demonstrate by a preponderance of the evidence that Respondent violated the statutory section cited. Proof by a “preponderance” means that “the evidence is sufficient to persuade the finder of fact that the proposition is more likely true than not.” In re: Arnold and Baker Farms, 177 B.R. 648 (9th Cir. BAP (Ariz.) 1994). See also Culpepper v. State of Arizona, 187 Ariz. 431, 930 P.2d 508 (App. 1996). It is “evidence RECEIVED 10.12.2018 ROC LEGAL

which is of greater weight or more convincing than the evidence which is offered in opposition to it; that is, evidence which as a whole shows that the fact sought to be proved is more probable than not.” BLACK’S LAW DICTIONARY 1182 (Rev. 6th ed. 1990). 6. 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 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.

7. The evidence established that Respondent failed to pay the amount of $6,339.96.00 when due to Complainant for services rendered in connection with Respondent’s operations as a contractor. There was no evidence presented to rebut the existence or the extent of nonpayment. 8. In this matter, Complainant has established that Respondent’s license should be disciplined for a violation of A.R.S. § 32-1154(A)(10).

RECOMMENDED ORDER

Based on the foregoing, it is recommended that on the effective date of this J &

R Construction, LLC’s, License Number 316956 is suspended until the Registrar receives and accepts written verification that J & R Construction, LLC, has paid $6,339.96 to A to Z Equipment Rental AND Sales in certified funds. It is further recommended that if and when the Registrar receives and accepts Respondent’s evidence that it has paid Complainant $6,339.96 in certified funds, the Registrar may close this case.

RECEIVED 10.12.2018 ROC LEGAL

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 five days from the date of the certification. Done this day, October 12, 2018. /s/ Roger Geddes Administrative Law Judge

Transmitted electronically to: Jeffrey Fleetham, Director Registrar of Contractors