ALJDEC decisions subject to certification as final

2022A-06936-NPC-ROC · Registrar of Contractors · 2023-01-17

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Sunstate Equipment Co., LLC,

COMPLAINANT

Super Handyman Service Phoenix AZ LLC

DBA: SHS Services

License No. ROC 288387,

RESPONDENT

No. 2022A-06936-NPC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: January 4, 2023

APPEARANCES: Complainant Sunstate Equipment Co. LLC was represented by Edward J. Marko who appeared via Google Meet. Jeremy Amendt appeared via Google Meet on behalf of Super Handyman Service Phoenix AZ LLC.

ADMINISTRATIVE LAW JUDGE: Adam D. Stone

_____________________________________________________________________

FINDINGS OF FACT

On October 3, 2022, the Registrar of Contractors (“ROC”) issued a Notice of Hearing on Contested Case setting the above-captioned matter for hearing on November 7, 2022 at the Office of Administrative Hearings.

The Notice of Hearing shows that the hearing was being conducted on the charges made in the complaint and citation that were served on Respondent Super Handyman Service Phoenix AZ LLC on September 13, 2022.

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

Respondent holds License No. 288387 issued by ROC. Jeremy Amendt was Respondent’s qualifying party and an officer in the corporation.

Complainant is Sunstate Equipment Co. LLC.

On August 15, 2022, Complainant filed with ROC a complaint against Respondent alleging that Respondent owed Complainant $3,066.64 for unpaid rental fees of various machines.

The matter was continued and the hearing was convened on January 4, 2023.

Brennan Van Tassell testified on behalf of Complainant. Mr. Van Tassell was Complainant’s District Manager. He testified that the amount owed was $3,091.62.

Mr. Van Tassell testified that Respondent had previously rented equipment from Complainant in May of 2013 and that there was a balance due on the old rental equipment.

Mr. Van Tassell testified that on or about October 22, 2021, Mr. Amendt called to rent a forklift and have it delivered to his residence. Complainant did so, and then picked up the forklift from Mr. Amendt’s residence on October 25, 2021. The total charge was $900.44. Also, Mr. Van Tassell testified that during that same time frame, Respondent rented a boom lift, and that total charge was $765.18.

In addition, Mr. Van Tassell testified that on October 30, 2021, Mr. Amendt rented a forklift until November 1, 2021. The charge for the same was $866.73.

Mr. Van Tassell also testified that on November 5, 2021, Mr. Amendt rented a boom lift, scissor lift and a forklift, and while they were delivered, apparently Mr. Amendt cancelled the delivery.

Further, Mr. Van Tassell testified that the only way Complainant would have rented to Respondent was if it had satisfied its outstanding balance which it did.

Finally, Mr. Van Tassell testified that most of the equipment had location tracking devices equipped and that the delivery driver would confirm delivery with the recipient.

Mr. Amendt testified on behalf of Respondent. He testified adamantly that he did not rent the equipment, and had not signed a contract with Complainant since 2013. Further, he testified that no equipment was delivered to his house.

Too, Mr. Amendt testified that although his license was currently suspended, he typically did not perform the type of work which would require a forklift or boom lift. Further he testified that he does not even have a trailer to haul the equipment to a jobsite.

In addition, Mr. Amendt testified that he did not satisfy any outstanding debt with Complainant and last rented equipment in 2013.

Mr. Amendt also testified that there were other businesses using names similar to “Super Handyman Services” and this must have been a mistake.

Administrative notice is taken of Respondent’s prior License record on January 17, 2023. Such prior License record reflects that Respondent’s License No. 288387 was first issued on January 2, 2014, and reflects that there was one open complaint, namely the present complaint. Further the license has been suspended since February 23, 2022.

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 $3,091.62 for the equipment rental. The invoices contained Respondent’s name and “Jeremy” as the person ordering the equipment. Further, the invoices indicated that the equipment was delivered to Respondent’s address. While Mr. Amendt testified there were many other contractors with the same company be provided no proof that there were other “Jeremy’s” as owners/qualifying parties. Further, it is also hard to fathom that if this equipment appeared at Mr. Amendt’s house, and he did not rent the same, why he would not have contacted Complainant informing them of a possible mistake at some point while the equipment was at his house.

The preponderance of the evidence shows that Respondent has violated section 32-1154(A)(10).

Respondent’s license should be suspended until it pays to Complainant $3,091.62.

RECOMMENDED ORDER

IT IS RECOMMENDED that Super Handyman Service Phoenix AZ LLC’s license number 288387 be suspended until the Registrar receives proof that it has paid to Sunstate Equipment Co., LLC $3,091.62.

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 forty days after the date of that certification.

-54864001

001

-137160-45720000Done this day, January 17, 2023.

/s/ Adam D. Stone

Administrative Law Judge

Transmitted electronically or by mail to:

Jeffrey Fleetham, Director

Registrar of Contractors

Super Handyman Service Phoenix AZ LLC

DBA: SHS Services

24201 N 181st Dr

Surprise, AZ 85387

[email redacted]

Edward J Marko

Marko Law PLLC

14820 N Cave Creek Rd Ste 6

Phoenix, AZ 85032-4951

[email redacted]

By: OAH Staff

-54864001

001

-137160-45720000