ALJDEC - Licensing
2024A-03743-NPC-ROC · Registrar of Contractors · 2024-10-07
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
Askren's Trucking,
COMPLAINANT,
v.
Arizona Construction Industries, LLC
License No. ROC 345153,
RESPONDENT.
No. 2024A-03743-NPC-ROC
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: September 9, 2024.
APPEARANCES:
For Complainant: Lyle Goodwin.
For Respondent: Edward Britt and Respondent’s Attorney Karen Palecek.
ADMINISTRATIVE LAW JUDGE: Samuel Fox
EXHIBITS ADMITTED INTO EVIDENCE: Administrative notice was taken of the Notice of Hearing Packet submitted by the Registrar of Contractors.
_____________________________________________________________________
FINDINGS OF FACT
Arizona Construction Industries, LLC (Respondent) was the holder of License No. 345153, issued by the Arizona Registrar of Contractors (Registrar) on May 22, 2023.
Kyle Brummels was an employee of Respondent. Through verbal contracts, he hired Askren’s Trucking (Complainant) multiple times in 2023 for jobs such as delivering asphalt from Vulcan Materials Company and removing demolition debris from jobsites. Mr. Brummels represented to Complainant that he was entering the agreements on behalf of Respondent. Mr. Brummels incurred more than $60,000 in invoices from Complainant.
For each job, Complainant submitted invoices to Respondent.
Respondent paid some of the invoices provided by Complainant. However, the invoices triggered Respondent to conduct an internal investigation, which uncovered that all of the invoices from Complainant were for jobs that Respondent did not work on. Respondent did not pay any addition invoices after the investigation.
In January 2024, Respondent fired Mr. Brummels, at least in part for inappropriately incurring bills for Respondent. Respondent testified that Mr. Brummels was scamming Respondent.
Complainant filed a complaint, alleging nonpayment of eleven invoices, many of which were not in evidence.
A hearing was held on September 16, 2024. Lyle Goodwin testified on behalf of Complainant. Edward Britt, Karl Thorpe, and Tyson Beringer testified on behalf of Respondent.
Mr. Goodwin was the owner of Complainant. At hearing, he testified that Respondent hired him to provide trucking services. He argued that he was owed for all of the invoices and requested an inference that payment of some invoices meant that the work was done and all of the invoices were due.
Mr. Britt was the principal for Respondent. He testified that Respondent never entered an agreement with Complainant, and he testified that Respondent had not done work at the addresses identified on the invoices, meaning that the work was not completed for Respondent. At hearing, he testified that when Respondent purchased materials from Vulcan, it used Vulcan’s delivery services. He also testified that Respondent only did paving work, not demolition.
Mr. Thorpe was the operations manager for Respondent, and Mr. Beringer was the project coordinator for Respondent. At hearing, they testified in support of Respondent’s position.
Administrative notice was taken of Respondent’s prior License record on October 1, 2024. According to that record, Respondent’s License No. 345153 was active. The above-entitled matter was the only open complaint against the license, and three prior matters had been resolved or were determined to be in compliance.
CONCLUSIONS OF LAW
This matter lies within the Registrar’s jurisdiction.
Complainant bore the burden of proof to establish Respondent’s statutory violations by a preponderance of the evidence. Respondent bore the burden of proof to establish an affirmative defense 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.
Statutes should be interpreted to provide a fair and sensible result and “be liberally construed to effect their objects and to promote justice.”
Complainant failed to establish by a preponderance of the evidence that Complainant and Respondent had agreements under which unpaid amounts were due.
Complainant failed to establish by a preponderance of the evidence that the work, which was at issue at the hearing, was for Respondent or on projects for which Respondent was hired to perform services.
Therefore, the Administrative Law Judge did not find grounds to impose discipline against Respondent’s license.
RECOMMENDED ORDER
Based on the foregoing, it is recommended that on the effective date of the Registrar’s Order, Complainant’s complaint be closed.
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, October 7, 2024.
/s/ Samuel Fox
Administrative Law Judge
Transmitted by either mail, e-mail, or facsimile to:
Tom Cole, Director
Registrar of Contractors
Karen A. Palecek Esq.
PALECEK & PALECEK, PLLC
[email redacted]
Askren's Trucking
[email redacted]
By: OAH Staff