ALJDEC decisions subject to certification as final
2021A-00278-NPC-ROC · Registrar of Contractors · 2021-04-29
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
Ahern Rentals Inc.,
COMPLAINANT,
v.
Pindernation Electric LLC
License No. ROC 300671,
RESPONDENT.
No. 2021A-00278-NPC-ROC
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: April 14, 2021
APPEARANCES: Jaime Leonard appeared on behalf of Complainant Ahern Rentals, Inc. No one appeared on behalf of Respondent Pindernation Electric, LLC.
ADMINISTRATIVE LAW JUDGE: Velva Moses-Thompson
_____________________________________________________________________
FINDINGS OF FACT
1. Complainant Ahern Rentals, Inc. (Ahern) entered into an agreement with Respondent Pindernation Electric, LLC (Pindernation) wherein Ahern agreed to provide rental equipment to Pindernation in connection with Pindernation’s operations as a contractor.
2. Ahern provided the rental equipment to Pindernation pursuant to the agreement.
3. In 2020, Ahern issued invoices to Pindernation totaling $49,578.55 for the rental equipment that it provided to Pindernation.
4. Pindernation failed to pay the invoices.
5. On or about January 19, 2021, Ahern filed a complaint with the Registrar alleging that Pindernation failed to pay for rental equipment that it provided to Pindernation.
6. On February 5, 2021, the Registrar issued a Citation against Pindernation’s license for an alleged violation of Arizona Revised Statutes (A.R.S.) § 32-1154(A)(10). The Citation shows that if the Administrative Law Judge finds that the charge is valid, the Registrar may suspend or revoke Pindernation’s license.
7. Pindernation filed a timely answer to the Citation.
8. The matter was referred to the Office of Administrative Hearings for an evidentiary hearing.
9. On March 10, 2021, the Registrar issued a Notice of Hearing setting the matter for hearing on April 14, 2021. The Notice of Hearing shows that the hearing was set to consider the charges made in the Citation and complaint.
10. A hearing was held on April 14, 2020.
11. No one appeared on behalf of Pindernation at the scheduled time and the matter was convened in its absence at about 9:11 a.m.
12. At hearing, Ahern presented the testimony of Jaime Leonard, the manager of Ahern’s office located in Phoenix, Arizona. Ahern also presented the testimony of John Childers, an account manager at Ahern.
13. Mr. Leonard explained that Ahern provided rental equipment to Pindernation, but Pindernation failed to pay the invoices. Mr. Childers testified to the effect that Ahern provided rental equipment to Pindernation for several construction sites and Pindernation failed to pay the invoices as shown in the complaint. Mr. Leonard requested an interest payment in the amount of $9,772.08.
CONCLUSIONS OF LAW
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.
“At a hearing on an agency action to suspend, revoke, terminate or modify on its own initiative material conditions of a license or permit, the agency has the burden of persuasion.” Ariz. Rev. Stat. § 41-1092.07(G)(2).
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).
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.").
“Statutes shall be liberally construed to effect their objects and to promote justice.” Ariz. Rev. Stat. § 1-211(B).
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).
Ariz. Rev. Stat § 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.
8. Ariz. Rev. Stat § 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 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.”
9. Payment for “[s]ervices rendered in connection with the licensee’s operations as a contractor” does not include interest, finance charges, lien charges, or other charges that are based solely on contract terms.
10. The preponderance of the evidence shows that Respondent violated Ariz. Rev. Stat § 32-1154(A)(10) as alleged.
11. Based upon Respondent’s violation of the provisions of Ariz. Rev. Stat § 32-1154(A)(10), grounds exist to impose discipline against Pindernation’s license.
12. Because A.R.S. § 32-1154(A)(10) only includes a licensee’s failure to pay for
materials or services rendered in connection with the licensee’s operations as a contractor, not late fees, interest, or other consequential or contractual damages, the Administrative Law Judge does not recommend that Respondent be required to pay late fees as a condition of keeping its contractor’s license in good standing.
RECOMMENDed order
Based on the foregoing, it is recommended that the Registrar suspend Pindernation Electric LLC License No. ROC 300671 issued by the Registrar until it has provided to the Registrar, and the Registrar has accepted, documents that establish that it has paid Complainant $49,578.55 in certified funds.
It is further recommended that when and if the Registrar receives and accepts Respondent’s evidence that it has paid Complainant $49,578.55 in certified funds, the Registrar may close the Complaint in Case No. 2021A-00278.
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.
Done this day, April 29, 2021.
/s/ Velva Moses-Thompson
Administrative Law Judge
Transmitted electronically to:
Jeffrey Fleetham, Director
Registrar of Contractors