ALJDEC decisions subject to certification as final

2022A-03766-NPC-ROC · Registrar of Contractors · 2022-09-13

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Top Fleet Equipment Services LLC,

COMPLAINANT,

Heka Demolition LLC,

License No. ROC 323709,

RESPONDENT.

No. 2022A-03766-NPC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: August 12, 2022 at 9:00 a.m.

APPEARANCES: Edward Vasquez (“EV”) and Amy Vasquez represented Top Fleet Equipment Services LLC. (“Complainant”); Toy Ortiz (“TO”), Gary Yagudayev (“GY”), and Natan Uvaydov (“NU”) represented Heka Demolition LLC. (“Respondent”).

ADMINISTRATIVE LAW JUDGE: Kay Abramsohn

_____________________________________________________________________

FINDINGS OF FACT

1. The subject equipment, as a used item, was sold to Respondent by Complainant for $6,500.00.

2. On February 9, 2022, NU asked EV to work on the equipment (i.e., to fix the equipment) in the field. At hearing, EV did not specify what the specific request was in the field other than to fix it.

3. Once he got there, Complainant found that a cord/wires had been cut and there was a broken key lodged in/on the equipment. After approximately two hours, Complainant informed Respondent that they needed to bring the equipment to Complainant’s shop because the work to fix it could not be completed in the field.

4. At hearing, NU stated that, at that time, the work had been “urgently” needed as it was at work in the field. At hearing, TO further stated that NU had asked TO talk to EV about the “lift” because they had cut the cord to the box and wanted EV to rewire it. TO also reiterated that EV had indicated he could not fix it in the field and to bring the equipment to Complainant’s shop.

5. At hearing, TO stated that Respondent had one more week of work [needing that type of equipment] at the field site and, thus, as their equipment could not be fixed at that time, Respondent rented equipment to complete the job.

6. On March 4, 2022, Respondent brought the equipment to Complainant’s shop. At hearing, EV stated that his understanding was that Respondent urgently wanted the equipment fixed, i.e., as soon as possible, even if possible that same day. EV found that the “harness” was inoperable and texted NU at 3:39 PM regarding what the next step would be.

7. At hearing, NU stated that, when he brought the equipment to the shop, he had told EV that they needed the equipment in a week but not that it was “urgent.” NU stated that it was only urgent when it was at the filed site.

8. At hearing, EV explained that as he worked on the equipment, he had to call in a manufacturer’s representative to assist in the repair as other issues would pop up once one thing was fixed. EV provided his texts to the manufacturer representative.

9. On March 14, 2022, EV texted NU that the equipment was ready to be picked up; a few hours later, NU asked about the total bill.

10. Once EV worked up the invoice, it totaled over $4,000.00 and he told NU that he would “trim it a bit.” At hearing EV stated that he wanted to give Respondent a “reasonable” bill, and the final amount, with noted discounts, was reduced to $3,259.93.

11. On April 5, 2022, EV reached out to NU regarding payment on the invoice.

12. EV testified that no one from Respondent ever asked for an estimate or for costs, and that the only direction he got from Respondent was that they urgently wanted the machine to be fixed. At hearing, EV stated that even if they had asked about the costs or an estimate on fixing the equipment, based on the repairs that ended up having to be done, he did not know as it was being fixed exactly what needed to be done and would not have been able to give them an estimate. EV stated that he had only dealt with NU and that he had trusted Respondent to pay for the repairs because they had always paid immediately on other work. Regarding any needed “authorization,” EV argued that, by Respondent having brought the equipment to the shop to be fixed, that was Respondent’s authorization to fix the equipment.

13. At hearing, TO stated that they had only asked him to fix the cord, i.e., to rewire the cord that was cut. TO argued that Respondent should have been told that EV was calling in the manufacturer’s representative about what repair work needed to be done.

14. At hearing, GY questioned the business practices of a company that did not provide an estimate or update on issues arising after a “full inspection” of the equipment. Also, GY argued that, by calling in the manufacturer’s representative, Complainant had “racked up” the charges without Respondent’s approval.

15. Respondent’s position was that they were taken advantage of by Complainant not having informed them of an estimate or the costs.

16. Complainant’s position was that Respondent asked EV to fix the equipment, which EV took to mean make the equipment operational, and that Respondent never asked for any estimate or costs. EV argued that he felt he was taken advantage of in being coerced to drop the labor charges.

17. Complainant filed a Non-Payment Complaint Form (“Complaint”) with the Arizona Registrar of Contractors (“ROC”) alleging that Respondent failed to pay for the performed services on three invoices.

18. On May 27, 2022, Respondent filed a response to the Complaint, indicating that the equipment had been brought to Complainant “to replace the cord for the remote control” but had not authorized any other repairs. Further, that EV had only provided an update that Complainant was doing all they could to get the equipment repaired and not provided any estimates or costs. In this response, Respondent referred to the repair as being “urgent” and argued that Complainant “took advantage of the crucial and desperate time” to rack up charges without approval or authorization from Respondent. Finally, Respondent indicated that it would pay on two of the three invoices, but not on the balance of $3,259.93.

19. On June 6, 2022, the ROC issued a Citation against Respondent’s license. Through the Citation, the ROC alleged that Respondent may have violated Arizona Revised Statutes (“A.R.S.”) 32-1154(A)(10). The Citation further specified that if Respondent failed to file an answer by June 21, 2022, the failure to do so may be deemed to be an admission of the alleged act(s) with the result that ROC might suspend or revoke Respondent’s license.

20. The matter was subsequently referred to the Office of Administrative Hearings for an evidentiary hearing.

21. Since the hearing date, neither party has advised that the matter was resolved informally.

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. Arizona Administrative Code (“A.A.C.”) 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.” A.R.S. § 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.” A.R.S. § 1-211(B).

The purpose of the ROC’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).

A.R.S. § 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. The preponderance of the evidence shows that Respondent violated A.R.S. § 32-1154(A)(10) as alleged. Based upon Respondent’s violation of the provisions of A.R.S. § 32-1154(A)(10), grounds exist for the ROC to impose discipline against Respondent’s license.

RECOMMENDed order

Based on the foregoing, it is recommended that the ROC suspend Respondent’s ROC license number 323709 until Respondent has provided to the ROC, and the ROC has accepted, documentation that establishes that Respondent has paid Complainant $3,259.93 in certified funds.

It is further recommended that when and if the ROC receives and accepts Respondent’s documentation that it has paid Complainant in certified funds, the ROC may close the Complaint in Case No. 2022-003766.

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

-137160-45720000Done this day, September 13, 2022.

/s/ Kay Abramsohn

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Registrar

Registrar of Contractors

By Miranda R. Alvarez

Legal Secretary