ALJDEC - Licensing
2023A-04317-NPC-ROC · Registrar of Contractors · 2023-08-28
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
Precision Rentals
COMPLAINANT,
v.
Pindernation Holdings LLC
DBA: PinderNation Plumbing
License No. ROC 338591,
RESPONDENT.
No. 2023A-04317-NPC-ROC
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: August 28, 2023
APPEARANCES: Randy Wolfson, Esq. represented Complainant Precision Rentals. Lord Pindernation represented Respondent Pindernation Holdings, LLC.
ADMINISTRATIVE LAW JUDGE: Velva Moses-Thompson
_____________________________________________________________________
FINDINGS OF FACT
1. Respondent Pindernation Holdings LLC, DBA: PinderNation Plumbing,
holds license number 338591 issued by the Arizona Registrar of Contractors (Registrar).
2. Lord Pindernation is Respondent’s qualifying party.
3. Complainant Precision Rentals entered into a contract with Respondent wherein Complainant agreed to provide Respondent with construction equipment in connection with Respondent’s activities as a contractor.
4. Complainant issued several invoices to Respondent for equipment provided to Respondent during the time period of August 2022 to November 2022. However, Respondent failed to pay all of the invoices.
5. On or about April 11, 2023, Complainant filed a complaint with the Registrar alleging that Respondent failed to pay for materials and services provided when payment became due.
6. On June 5, 2023, the Registrar issued a Citation alleging that Respondent violated Ariz. Rev. Stat. § 32-1154(A)(10).
7. Respondent filed a timely answer to the Citation.
8. The matter as referred to the Office of Administrative Hearings for an evidentiary hearing.
9. A virtual hearing convened on July 21, 2023. However, it became difficult to hear Respondent’s representative by telephone and the hearing was set for a further in person hearing on August 8, 2023.
10. At the hearing on August 8, 2023, Complainant presented the testimony of Ron Copley, Mark Cox, and Amanda R. Sigmund. Mr. Pindernation testified on behalf of Respondent.
11. Ms. Sigmund is Complainant’s Director of Finances and Administration.
Ms. Sigmund explained that Pindernation failed to pay a total of $91,903.63 when payment became due for the materials and services provided to Pindernation.
Ms. Sigmund explained that the amount of $91,903.63 does not include additional fees incurred after the invoices were issued.
12. Mr. Cox is an owner of Complainant. Mr. Cox explained that Complainant rented equipment to Respondent in connection with Respondent’s operations as a contractor. Mr. Cox also explained that Complainant leased some equipment and other equipment Complainant gave Respondent the option to purchase the equipment at the end of the rental term (RPO).
13. Mr. Pindernation did not dispute that Respondent received materials and services from Complainant in connection with Respondent’s work as a contractor.
Mr. Pindernation disputed that Respondent owed Complainant $91,903.63. Mr. Pindernation stated that some of the invoices included charges for an RPO when an RPO arrangement was not created. Mr. Pindernation stated that the invoices were incorrect and that the final amount owed as alleged by Complainant included fees that were added after the invoices were issued. Mr. Pindernation also stated that Respondent would not know owe Complainant any money after certain credits were applied. However, Mr. Pindernation did not offer any written evidence to support his claims.
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. 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).
Ariz. Rev. Stat § 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. Ariz. Rev. Stat § 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 . . . 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.”
9. Payment for “[s]ervices rendered in connection with the licensee’s operations as a contractor” does not include interest, finance charges, lien charges, or other charges that are based solely on contract terms.
10. The preponderance of the evidence shows that Respondent violated Ariz. Rev. Stat § 32-1154(A)(10) as alleged.
11. Based upon Respondent’s violation of the provisions of Ariz. Rev. Stat § 32-1154(A)(10), grounds exist to impose discipline against Respondent’s license.
12. Because A.R.S. § 32-1154(A)(10) only includes a licensee’s failure to pay for
materials or services rendered in connection with the licensee’s operations as a contractor, not late fees, interest, or other consequential or contractual damages, the Administrative Law Judge does not recommend that Respondent be required to pay late fees as a condition of keeping its contractor’s license in good standing.
RECOMMENDed order
Based on the foregoing, it is recommended that the Registrar suspend Pindernation Holdings LLC DBA: PinderNation Plumbing License No. ROC 338591, issued by the Registrar, until it has provided to the Registrar, and the Registrar has accepted, documents that establish that it has paid Complainant $91,903.63 in certified funds.
It is further recommended that when and if the Registrar receives and accepts Respondent’s evidence that it has paid Complainant $91,903.63 in certified funds, the Registrar may close the Complaint in Case No. 2023A-04317.
Pursuant to A.R.S. § 41-1092.08(I), the licensee may accept the Administrative Law Judge Decision by advising the Office of Administrative Hearings in writing not more than ten (10) days after receiving the decision. If the licensee accepts the Administrative Law Judge Decision, the decision shall be certified as the final decision by the Office of Administrative Hearings.
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 will be forty (40) days from the date of that certification.
Done this day, August 28, 2023.
/s/ Velva Moses-Thompson
Administrative Law Judge
Transmitted by either mail, e-mail, or facsimile to:
Martín Quezada, Director
Registrar of Contractors
[email redacted]
Randy Wolfson
[email redacted]
Precision Rentals
[email redacted]
Pindernation Holdings LLC
DBA: PinderNation Plumbing
[email redacted]
By: OAH Staff