ALJDEC decisions subject to certification as final

2021A-00891-NPC-ROC · Registrar of Contractors · 2021-06-17

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

MAK Equipment,

COMPLAINANT

R J Russo LLC

License No. ROC 237600,

RESPONDENT

No. 2021A-00891-NPC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: May 28, 2021

APPEARANCES: Scott Brown, General Manager, appeared on behalf of Complainant MAK Equipment. Rustin Russo, Owner and Qualifying Party, appeared on behalf of Respondent R J Russo LLC and was represented by Scott F. Frerichs.

ADMINISTRATIVE LAW JUDGE: Tammy L. Eigenheer

_____________________________________________________________________

FINDINGS OF FACT

R J Russo LLC (Respondent) is the holder of License No. 237600 issued by the Registrar of Contractors (Registrar).

On or about March 1, 2021, MAK Equipment (Complainant) filed a Complaint against Respondent with the Registrar alleging that Respondent had failed to pay Complainant the sum of $11,573.21 for equipment rentals provided to Respondent.

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

Scott Brown testified that the total due to Complainant was $11,573.21. Mr. Brown stated that Complainant had attempted to collect the monies owed since January 2021 without success. Mr. Brown provided an accounting of the equipment provided and the charges related to that equipment.

Rustin Russo testified that Respondent had two different and unique operations, one is contracting activity performed under its Registrar of Contractors license, and one is a manufacturing business performed under its Department of Housing license. Mr. Russo indicated that the manufacturing division fabricated metal products and produced modular equipment. Mr. Russo asserted that the rental equipment at issue in this matter was delivered to the manufacturing facility and was used solely in and for the manufacturing operation.

Respondent did not assert that it lacked the capacity to pay the amount Complainant asserted was due.

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 the equipment rented by Respondent from Complainant was not “in connection the with the licensee’s operations as a contractor.”

Accordingly, Complainant did not establish that Respondent failed to pay it monies due in violation of A.R.S. § 32-1154(A)(10).

RECOMMENDed order

It is recommended that on the effective date of the Registrar’s final order in this matter, the Registrar close Complainant MAK Equipment’s complaint in Case No. 2021-00891 against Respondent R J Russo LLC’s License No. 237600.

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-54864001

001

-137160-45720000.

Done this day, June 17, 2021.

/s/ Tammy L. Eigenheer

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors-54864001

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-137160-45720000