ALJDEC decisions subject to certification as final

2020A-04885-NPC-ROC · Registrar of Contractors · 2021-03-30

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Ross Aerial Equipment LLC,

DBA: Ross Equipment Rentals,

COMPLAINANT

JMT Mechanical LLC

License No. ROC 288920,

RESPONDENT

No. 2020A-04885-NPC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: March 10, 2021

APPEARANCES: Lynne Welton, Credit Manager, appeared on behalf of Complainant Ross Aerial Equipment LLC, doing business as Ross Equipment Rentals. Justine Trevino, Owner, appeared on behalf of Respondent JMT Mechanical LLC.

ADMINISTRATIVE LAW JUDGE: Tammy L. Eigenheer

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FINDINGS OF FACT

JMT Mechanical LLC (Respondent) is the holder of License No. 288920 issued by the Registrar of Contractors (Registrar).

On or about October 13, 2020, Ross Aerial Equipment LLC (Complainant) filed a Complaint against Respondent with the Registrar alleging that Respondent had failed to pay Complainant the sum of $1866.04 for the rental of equipment used by Respondent in July 2020.

The parties were unable to resolve their differences, and Complainant requested an administrative hearing. The Registrar then issued a Citation for Alleged Violation of A.R.S. § 32-1154(A)(10).

Lynne Welton, Credit Manager, testified that the total due to Complainant was $1567.86 at the time of the hearing. Ms. Welton stated that Complainant provided Respondent a packet of information when it first rented from Complainant. In the packet, it was explained that Complainant required a $100,000.00 rental insurance policy and that if a renter did not have sufficient coverage, a damage waiver fee would be charged on rental equipment. Ms. Welton testified that Respondent had rental insurance policy of $50,000.00, so any time Respondent rented a piece of equipment that was worth more than that amount, Respondent was charged a damage waiver fee.

Justine Trevino, Owner, testified that Respondent sent Complainant its rental insurance policy of $100,000.00 with Complainant named as the loss insured when it first rented from Complainant. Ms. Trevino stated that Respondent had held the policy in that amount the entire time it rented from Complainant. Ms. Trevino questioned some of the charges from prior rentals from Respondent that Complainant had paid in full. Ms. Trevino offered a spreadsheet to explain her

Ms. Trevino testified that the general contractor on the project for which the equipment was rented and used had failed to promptly pay it for the work done.

Respondent asserted that it lacked the capacity to pay the amount Complainant asserted was due and had not been paid in full by the general contractor on the project.

CONCLUSIONS OF LAW

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 a preponderance of the evidence. See A.A.C. R2-19-119.

A preponderance of the evidence is “such proof as convinces the trier of fact that the contention is more probably true than not.” Morris K. Udall, Arizona Law of Evidence § 5 (1960).

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 $750 when due for materials or services rendered in connection with the licensee's operations as a contractor unless the licensee proves that the licensee lacks the capacity to pay and has not received sufficient monies as payment for the particular construction work project or operation for which the services or materials were rendered or purchased.

The evidence established that Respondent owed a total of $1567.86 for the rental of equipment.

Respondent failed to establish by a preponderance of the evidence that it lacked the ability to pay Complainant for the work performed.

Respondent failed to establish by a preponderance of the evidence that Respondent had received sufficient monies as payment for the particular construction work project for which the equipment was rented.

Therefore, Complainant established that Respondent violated A.R.S. § 32-1154(A)(10) by failing to pay Complainant $1567.86 for services or materials rendered in connection with Respondent’s contracting business.

Based upon Respondent’s violation of the provisions of A.R.S. § 32-1154(A)(10), grounds exist to impose discipline against Respondent’s license

RECOMMENDed order

Based on the foregoing, it is recommended that the Registrar suspend Respondent’s License No: 288920 issued by the Registrar until it has provided to the Registrar, and the Registrar has accepted, documents that establish that it has paid Complainant $1567.86 in certified funds.

It is further recommended that when and if the Registrar receives and accepts Respondent’s evidence that it has paid Complainant $1567.86 in certified funds, the Registrar may close the Complaint in Case No. 2020-04885.

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 40 days from the date of the certification.

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-137160-45720000Done this day, March 30, 2021.

/s/ Tammy L. Eigenheer

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors-54864001

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-137160-45720000