ALJDEC decisions subject to certification as final

2022A-03402-NPC-ROC · Registrar of Contractors · 2022-08-29

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

American Fence Company of Arizona, Inc.,

COMPLAINANT

High Adventure Excavation, LLC

License No. ROC 323087,

RESPONDENT

No. 2022A-03402-NPC-ROC

ADMINISTRATIVE LAW JUDGE

DECISION

HEARING: August 11, 2022

APPEARANCES: Douglas Waslaski appeared on behalf of Complainant American Fence Company of Arizona, Inc. Michael Anderson and Ariel Garcia appeared as witnesses for Complainant American Fence Company of Arizona, Inc. Respondent High Adventure Excavation, LLC failed to appear.

ADMINISTRATIVE LAW JUDGE: Sondra J. Vanella

FINDINGS OF FACT

High Adventure Excavation, LLC (“Respondent”) is the holder of License No. 323087 issued by the Arizona Registrar of Contractors (“Registrar”).

On or about April 26, 2022, American Fence Company of Arizona, Inc. (“Complainant”) filed a Complaint against Respondent with the Registrar alleging that Respondent had failed to pay Complainant the sum of $6,217.35 for damaged and missing fencing, pads, and stands that Respondent had leased from Complainant.

The parties were unable to resolve their differences. The Registrar issued a Citation against Respondent for its alleged violation of A.R.S. § 32-1154(A)(10).

The matter was set for administrative hearing before the Office of Administrative Hearings on August 11, 2022. On the date and at the time set for hearing, and after proper notice, Respondent failed to appear. After a grace period, the matter proceeded to hearing.

Douglas Waslaski, Complainant’s Vice-president and Chief Financial Officer, testified that on December 4, 2020, the parties entered into a lease agreement for Respondent to rent from Complainant temporary fencing, pads, and stands for a construction project, and that the period of the lease was December 7, 2020 through December 6, 2021. During his testimony, Mr. Waslaski referenced the parties’ rental agreement and addendum thereto.

Mr. Waslaski testified that after the expiration of the lease, in December 2021, Complainant retrieved the leased fencing equipment, and identified missing and damaged pieces of the leased equipment.

On or about January 3, 2022, Complainant billed Respondent for the missing and damaged components, including 17 damaged panels, 18 missing panels, 29 missing stands, and one damaged stand, in the amount of $6,217.35.

Ariel Garcia, Complainant’s Rental Sales Manager, testified that after the period of the lease expired, Respondent communicated to Complainant that Complainant could retrieve the equipment from the jobsite, and also informed Complainant that Respondent had not been on the jobsite since March 2021. Mr. Garcia testified that he informed Respondent that Respondent remained responsible for the leased equipment regardless of the date Respondent had left the jobsite as Respondent should have contacted Complainant to retrieve the equipment if Respondent was no longer in need of it.

After Complainant referred Respondent’s account to collections, Respondent attempted to return portions of a fence that did not belong to Complainant.

Respondent failed to appear and therefore, did not present any controverting evidence.

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 this matter is by a preponderance of the evidence.

A preponderance of the evidence is “such proof as convinces the trier of fact that the contention is more probably true than not.”

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 $6,217.35 for the damaged and missing equipment that it leased from Complainant.

Respondent failed to appear, and as such, failed to establish by a preponderance of the evidence that it lacked the ability to pay Complainant for the damaged and missing equipment that it leased from Complainant.

Therefore, Complainant established that Respondent violated A.R.S. § 32-1154(A)(10) by failing to pay Complainant $6,217.35 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. 323087 issued by the Registrar until it has provided to the Registrar, and the Registrar has accepted, documents that establish that it has paid Complainant $6,217.35 in certified funds.

It is further recommended that when and if the Registrar receives and accepts Respondent’s evidence that it has paid Complainant $6,217.35 in certified funds, the Registrar may close the Complaint in Case No. 2022-03402.

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 forty (40) days from the date of the certification.

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-137160-45720000Done this day, August 29, 2022.

/s/ Sondra J. Vanella

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors

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-137160-45720000By Miranda Alvarez

Legal Secretary