ALJDEC decisions subject to certification as final

2019A-00892-ROC · Registrar of Contractors · 2019-06-14

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: May 28, 2019 APPEARANCES: Gwen Messenger appeared on behalf of Complainant Buck’s Back Hoe Service, Inc. John Spear appeared on behalf of Respondent Mountain Edge Landscaping, Inc. ADMINISTRATIVE LAW JUDGE: Velva Moses-Thompson _____________________________________________________________________ FINDINGS OF FACT 1. Respondent Mountain Edge Landscaping, Inc., DBA: Westcom (Mountain Edge) holds license number 296663 issued by the Arizona Registrar of Contractors (Registrar). 2. John Spear owns Mountain Edge. 3. Mountain Edge rented a hoe from Dan M. to install a square footing for a house.[1] 4. Dan M. agreed to rent the hoe to Mountain Edge at a rate of $200 per day, $500 per week, and $1,800 per month.[2] 5. Mountain Edge used the hoe for four days during a period of approximately three weeks. Mountain Edge did not work four consecutive days due to a snow storm.[3] Mountain Edge stopped work two times during construction. Mr. Spear told Dan M. that he was forced to stop work due to the snow storm. Dan M. told Mr. Spear that he could keep the hoe because he understood the problem caused by the storm. [4] 6. Mr. Spear contacted Dan M. to pick up the hoe after Mountain Edge completed the project. However, Dan M. did not want to pick up the hoe right away. 7. At the time that Dan M. retrieved the hoe, Dan M. told Mr. Spear that he owed him no more than $1,000.[5] 8. Dan M. told Mr. Spear to make the check payable to Buck’s Back Hoe. 9. Gwen Messenger owns Buck’s Back Hoe. 10. Mr. Spear did not communicate with Ms. Messenger or Buck’s Back Hoe before or during construction. 11. Dan M. wrote a check for $1,000 payable to Buck’s Back Hoe. 12. Ms. Messenger refused the $1,000 check. 13. Buck’s Back Hoe issued an invoice to Mr. Spears and charged Mountain Edge $2,000 for 4 weeks of hoe rental. Buck’s Back Hoe applied an additional charge of $300 for delivery and $100 for fuel. Buck’s Back Hoe deducted one week of rental at $500. 14. The total amount of the invoice was $1,900. 15. Mountain Edge did not pay the $1,900 to Buck’s Back Hoe. 16. Buck’s Back Hoe filed a complaint with the Registrar. 17. On March 12, 2019, the Registrar, issued a Citation against Mountain Edge for an alleged violation of Arizona Revised Statutes (A.R.S.) § 32-1154(A)(10). 18. Mountain Edge filed a timely response to the Citation. In its response, Mr. Spear asserted that Mountain Edge never entered into a contract with Buck’s Back Hoe and in fact, Mr. Spear was not aware that Dan M. worked for Buck’s Back Hoe when it agreed to rent the hoe from Dan M. 19. The Registrar referred the matter to the Office of Administrative Hearings, (“OAH”) an independent agency, to schedule an evidentiary hearing. 20. On April 3, 2019, the Registrar issued a Notice of Hearing setting the above-captioned matter for hearing at 8:30 a.m. on May 28, 2019, at the OAH in Phoenix, Arizona. 21. A hearing was held on May 28, 2019. 22. At hearing, Ms. Messenger testified on behalf of Buck’s Back Hoe. Mr. Spear testified on behalf of Mountain Edge.[6] 23. Mr. Spear testified regarding the terms of the hoe rental and his communication with Dan M. during construction. 24. Mr. Spear’s testimony is found to be credible. 25. At hearing, Ms. Messenger asserted that Dan M. told her that Mountain Edge agreed to rent the hoe for $1,800. However, Ms. Messenger testified that no time period was specified for the $1,800 amount.[7] 26. Ms. Messenger stated that Dan M. told her that Mr. Spear never contacted Dan M. during the project. 27. Initially, Ms. Messenger testified that Mountain Edge was charged $1,800 for the rental, $100 for fuel, and one week of rental was deducted for the snow.[8] However, when asked by the Administrative Law Judge about the $2,000 charge for 4 weeks of rental listed on the invoice, Ms. Messenger stated that she was not sure because she did not have the documents with her.[9] 28. Ms. Messenger admitted that she refused the $1,000 payment from Mountain Edge.[10] 29. Administrative notice is taken of Respondent’s prior License record on June 14, 2019. Such prior License record reflects that Respondent’s License No. 296663 was first issued on April 20, 2015, and is active. Such prior License record also reflects that is one open complaint against Respondent, and one complaint that was resolved or settled. CONCLUSIONS OF LAW 1. This matter lies within the Registrar’s jurisdiction.[11] 2. 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. 3. 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). 4. 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.") 5. “Statutes shall be liberally construed to effect their objects and to promote justice.” A.R.S. § 1-211(B). 6. 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). 7. A.R.S. § 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….. 12. Failure in any material respect to comply with this chapter.

8. The weight of the evidence shows that Dan M. never communicated with Ms. Messenger or Buck’s Back Hoe before or during the construction. 9. I find that Ms. Messenger’s testimony regarding the terms of the rental to be unreliable. Ms. Messenger had no personal knowledge of the agreement between Dan M. and Mountain Edge. 10. The preponderance of the evidence shows that Dan M. and Mountain Edge agreed that Mountain Edge would pay $1,000 for the rental of the hoe. Although Dan M. and Mountain Edge originally agreed that Mountain Edge would pay $200 per day, $500 per week, and $1,800 per month, the parties modified the agreement at the time that Dan M. retrieved the hoe. Mr. Spear provide credible testimony that Dan M. charged him $1,000 of the hoe. 11. Ms. Messenger provided no testimony to rebut Mr. Spear’s testimony regarding the modification. Furthermore, Ms. Messenger’s testimony regarding Dan M.’s statement to her regarding Dan M.’s agreement with Mountain Edge is inconsistent with the rental price charged on the invoice. Ms. Messenger testified that Dan M. told her that Mountain Edge initially agreed to pay $1,800 to rent the hoe for an unspecified period. However, the invoice shows that Buck’s Back Hoe charged Mountain Edge $2,000 for four weeks of rental. Ms. Messenger stated at hearing that she was unsure about the $2,000 rental charge. 12. The preponderance of the evidence does not show that Mountain Edge violated A.R.S. §32-1154(A)(10) as alleged. ORDER IT IS ORDERED that the Citation and Complaint in Case No. 2019A-00892 is 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 is forty days after the date of that certification. Done this day, June 14, 2019.

/s/ Velva Moses-Thompson Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director Registrar of Contractors

----------------------- [1] See May 28, 2019 Hearing Audio, Office of Administrative Hearings Document 2019A-00892-ROC .DSS (HAUD) at 17:30 – 18:36. [2] See the testimony of John Spear at HAUD at 39:17 – 39:50. [3] Ms. Messenger informed the Administrative Law Judge prior to and at the time of hearing that she wanted to present the testimony of Dan M. However, Dan M. did not pick up the phone during the hearing although the Administrative Law Judge called Dan M. three times. See HAUD at 20:00 – 25:07.

[4] See HAUD at 39:51 - 42:25. [5] See id. [6] See HAUD at 42:00 – 43:00. [7] Ms. Messenger informed the Administrative Law Judge prior to and at the time of hearing that she wanted to present the testimony of Dan. However, Dan did not pick up the phone during the hearing although he was contacted three times by the Administrative Law Judge. See HAUD at 20:00 – 25:07. [8] See HAUD at 28:17 to 30:34. [9] See HAUD at 18:49 to 20:44. [10] See HAUD at 25:00 to 26:25. [11] See HAUD at 19:10 to 19:35. [12] See A.R.S. §§ 32-1151 to 32-1169.

-----------------------

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