ALJDEC decisions subject to certification as final

2022A-01214-NPC-ROC · Registrar of Contractors · 2022-08-22

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Phoenix Sky Rentals LLC,

COMPLAINANT

Brickstone Custom LLC

License No. ROC 308663,

RESPONDENT

No. 2022A-01214-NPC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: May 4, 2022, July 12, 2022 and July 13, 2022. The record was held open until August 5, 2022 for the parties to file closing arguments.

APPEARANCES: Ramona Gallo appeared on behalf of Complainant Phoenix Sky Rentals. Respondent Brickstone Custom LLC was represented by Karen Palacek, Esq.

ADMINISTRATIVE LAW JUDGE: Adam D. Stone

_____________________________________________________________________

FINDINGS OF FACT

On or about February 12, 2022 Complainant Phoenix Sky Rentals, LLC filed a Non-Payment Complaint form with the Registrar of Contractors. (“Registrar”).

On March 25, 2022, the Registrar issued a Notice of Hearing on Contested Case setting the above-captioned matter for hearing on May 4, 2022, at the Office of Administrative Hearings.

Through the citation and Notice of Hearing, the Registrar alleges that Respondent may have violated Ariz. Rev. Stat. section 32-1154(A)(10).

Respondent holds License No. 308663 issued by the Registrar. Jason Malcom MacGregor was Respondent’s qualifying party and an officer in the corporation.

Complainant leased to Respondent an excavator machine used by Respondent in connection with its license.

Complainant presented the testimony of Ramona Gallo, Norman Cenerini, and Philip Lewis. Complainant also offered 16 exhibits into evidence.

Ms. Gallo testified that Petitioner had rented the excavator to Respondent for an initial 3 month term at the rate of $16,000.00, commencing September 21, 2021. Ms. Gallo testified that the parties agreed to extend the lease an additional month and four days.

Ms. Gallo testified that Respondent provided his credit card and authorized Petitioner to charge the monthly rental amount, which was completed for the first four months but for a balance of $1,333.34 remaining from the third month. On or about January 31, 2022, a “final invoice” was sent to Respondent displaying a total due amount of $9,094.75. Ms. Gallo testified that these charges were declined by Respondent. Ms. Gallo testified that a “collection invoice” was prepared and sent to Respondent on or about February 8, 2022 in the amount of $9,573.19. Ms. Gallo testified that it was this amount which remains unpaid and what she is seeking.

Respondent presented the testimony of Jason MacGregor, Kyle Csader, Brad Thompson, and Ruben Terrazas. Respondent also offer 3 exhibits into evidence.

Mr. MacGregor testified that he initially saw the excavator on a different project and approached Petitioner about renting the machine for a future project. Mr. MacGregor testified that he was unsure why a portion of the third month of rent remained unpaid as his credit card was on file. Mr. MacGregor admitted however, that he would not authorize any further charges on his credit card once he disputed the final invoice for over $9,000.00. Mr. MacGregor also testified that he now believed that he owed nothing further on the rental and that Complainant owed him money. However, Mr. MacGregor admitted that per the terms of the contract the environmental fee, case of grease and re-fuel charge would be owed in addition to the remaining amount for the third month of rent and the amount for the additional four day rental. Finally, Respondent testified that while he arranged the transport of the machine, he did not pay for the same which was customary in the industry and further acknowledged he should pay the same.

Finally, it should be noted that both parties presented extensive evidence as to whether or not additional monies were owed due to potential damage to the equipment and various replacement parts Respondent paid for. The tribunal makes no findings of fact as to that issue as it goes beyond the scope of the statute and does not believe that this was the proper forum to discuss such issues.

CONCLUSIONS OF LAW

Unless otherwise provided by 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).

Among the grounds for suspension or revocation of a contractor’s license is a “[f]ailure by [the] 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.” Ariz. Rev. Stat. § 32-1154(A)(10).

The preponderance of the evidence shows that Respondent owes Complainant more than $750 for equipment rented in connection with Respondent’s operations as a contractor in violation of Ariz. Rev. Stat. § 32-1154(A)(10). First, there was no dispute over the unpaid remaining balance of the third month’s rent in the amount of $1,333.34. Second, there was no dispute that the fourth day rental fees in the amount of $761.88 remained unpaid. Third, there was no dispute that the environmental fee of $50.00 and the case of grease in the amount of $46.20 remained unpaid. Fourth, Mr. MacGregor testified that he should be responsible for the transportation of the machine back to Complainant which totaled $475.00.

The tribunal has also closely examined the “collection invoice” in Exhibit 10A. The Administrative Law Judge concludes that there were two charges for fuel. Namely, one charge which was labeled “re-fuel charge” in the amount of $280.00 and one labeled as “new fuel” in the amount of $520.00. In examining the terms of the contract, it states, “[i]f Lessee returns the equipment with the fuel tanks less than full, Lessee will pay $8.00 USD per gallon for the number of gallons required to refill the take at the time of return.” Therefore, the Administrative Law Judge concludes that in this forum, the $280.00 charge was the appropriate charge in this case as the fuel tank was deficient by 35 gallons.

Thus, the total amount owed to Complainant is as follows:

3rd month unpaid rent

$1,333.34

Rent 1/11/22 – 1/14/22

$761.88

Environmental fee

$50.00

Case of grease

$46.20

Transport fee

$475.00

Re-fuel charge

$280.00

State & County Tax 6.3%

$138.06

City Tax 2.3%

$50.40

TOTAL

$3,134.88

Finally, there was no evidence presented that Respondent lacked the ability to pay.

As to the remaining damage charges on the invoice and any offsets Respondent may be entitled to, as mentioned above, the tribunal declines to determine the same as it believes it is outside of the scope of this hearing.

Respondent’s license should be suspended until it pays to Complainant $3,134.88.

RECOMMENDED ORDER

IT IS RECOMMENDED that Brickstone Custom LLC’s license number 308663 be suspended until the Registrar receives proof that it has paid to Phoenix Sky Rental, LLC $3,134.88.

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 thirty days after the date of that certification.

-54864001

001

-137160-45720000Done this day, August 22, 2022.

/s/ Adam D. Stone

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors

-54864001

001

-137160-45720000By: Miranda Alvarez

Legal Secretary