ALJDEC - Licensing

2023A-08717-NPC-ROC-RH · Registrar of Contractors · 2024-02-28

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

B-Line Transport, LLC,

COMPLAINANT,

v.

Digger-Dan's Dirtworks, LLC

License No. ROC 344888,

RESPONDENT.

No. 2023A-08717-NPC-ROC-RH

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: February 13, 2024

APPEARANCES: Kara Mullett appeared on behalf of Complainant B-Line Transport, LLC. Risa and Dan VanCanneyt appeared on behalf of Respondent Digger-Dan’s Dirtworks, LLC.

ADMINISTRATIVE LAW JUDGE: Sondra J. Vanella

EXHIBITS ADMITTED INTO EVIDENCE: Complainant’s Exhibits 1, 3, 4, 5, 6, 7, 8, 10, 11, 14, 16, 18, 19, 20, 21, 24, 25, 26, 27, 28, and 31

FINDINGS OF FACT

Digger-Dan’s Dirtworks, LLC (“Respondent”), is the holder of License Number 344888 issued by the Arizona Registrar of Contractors (“Registrar”).

On or about July 31, 2023, B-Line Transport, LLC (“Complainant”) filed a Complaint against Respondent with the Registrar alleging that Respondent had failed to pay Complainant the sum of $9,000.80 for the hauling of broken concrete from a United Rentals jobsite to a dump, as well as for dump fees.

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 February 13, 2024, at 1:00 p.m., pursuant to the Notice of Hearing issued to the parties by the Registrar. On the date and time set for hearing, Kara Mullett appeared on behalf of Complainant. Risa and Dan VanCanneyt appeared on behalf of Respondent.

Ms. Mullett testified in detail regarding the work performed by Complainant and the agreement between the parties. The parties’ contract dated January 23, 2023, specifies that Respondent will make monthly progress payments to Complainant.

Ms. Mullett testified that Complainant performed work for Respondent from January 23, 2023, through March 7, 2023, and that Respondent did not pay Complainant any progress payments. The only amount paid to Complainant was an initial payment of $1,500.00. The parties agreed to an hourly rate of $120.00. The parties agreed that Complainant would submit weekly haul sheets to Respondent.

Complainant submitted an invoice to Respondent dated January 28, 2023, in the amount of $1,360.40, along with the corresponding haul sheets.

Complainant submitted an invoice to Respondent dated February 18, 2023, in the amount of $3,395.40, along with the corresponding haul sheets.

Complainant submitted an invoice to Respondent dated March 3, 2023, in the amount of $3,015.00. On or about March 1, 2023, Complainant transitioned to Quick Books and notified Respondent of such and confirmed the receipt of haul sheets. The Quick Books invoices show the dates and times Respondent viewed the invoices.

On or about March 7, 2023, Complainant discontinued working for Respondent due to Respondent causing damage to Complainant’s trucks. Ms. Mullett testified that Respondent damaged Complainant’s trucks twice in one week and that the damage was caused by Respondent’s owners’ son overloading the bucket on the truck and pulling down on the bucket too quickly, thereby, striking the truck. Ms. Mullett explained that Complainant feared that because Respondent “was not being safe,” Respondent would cause further damage and Complainant could not afford to lose the use of the truck.

On March 6, 2023, Complainant notified Respondent of the damage to the truck via text message and Respondent acknowledged the damage caused by Respondent’s owners’ son.

Complainant submitted an invoice to Respondent dated March 13, 2023, in the amount of $1,230.00.

On June 12, 2023, Respondent’s representative confirmed via email that Respondent would pay Complainant, thereby acknowledging that funds were due and owing to Complainant.

On September 12, 2023, Ms. Mullett confirmed with the General Contractor for the project via email that Respondent had been paid in full:

1/23/2023

3/23/2023

4/19/2023

5/19/2023

6/23/2023

Kara,

These are the dates that I sent them their payments, they are 100% paid in full. We did have some final contract adjustments amongst ourselves but they should have gotten all the money to pay what ever they owe you.

Ms. VanCanneyt testified that Respondent incurred expenses due to Complainant’s decision not to continue to work for Respondent. Respondent did not provide any credible evidence of these alleged expenses.

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 party asserting an affirmative defense has the burden of establishing the affirmative defense by the same evidentiary standard.

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:

Failure 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 credible evidence presented at hearing established that Respondent continues to owe Complainant a total of $9,000.80 for the hauling and dumping of concrete for the project referenced above.

Respondent failed to establish by a preponderance of the evidence that it lacked the ability to pay Complainant for the services/materials provided, and in fact, the credible evidence established that Respondent was paid in full for the project.

Therefore, Complainant established that Respondent violated A.R.S. § 32-1154(A)(10) by failing to pay Complainant $9,000.80 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 Number 344888 issued by the Registrar until it has provided to the Registrar, and the Registrar has accepted, documents that establish that it has paid Complainant $9,000.80 in certified funds.

It is further recommended that when and if the Registrar receives and accepts Respondent’s evidence that it has paid Complainant $9,000.80 in certified funds, the Registrar may close the Complaint in Case Number 2023-08717.

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, February 28, 2024.

/s/ Sondra J. Vanella

Administrative Law Judge

Transmitted by either mail, e-mail, or facsimile to:

Tom Cole, Director

Registrar of Contractors

B-Line Transport, LLC

[email redacted]

Digger-Dan's Dirtworks, LLC

[email redacted]

By: OAH Staff