ALJDEC decisions subject to certification as final

2016A-199-ROC · Registrar of Contractors · 2016-05-04

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: May 4, 2016 APPEARANCES: Complainant Lanmor Services Inc. was represented by Paul Sanger. Respondent Tri Signal Integration Inc. did not appear. ADMINISTRATIVE LAW JUDGE: Tammy L. Eigenheer _____________________________________________________________________ FINDINGS OF FACT 1. Tri Signal Integration Inc. (Respondent) is the holder of License No. 218052 issued by the Registrar of Contractors (Registrar). 2. On or about January 15, 2016, Lanmor Services Inc. (Complainant) filed a Complaint against Respondent with the Registrar alleging that Respondent had failed to pay Complainant the sum of $47,635.25 for work performed at the Sierra Wind project. 3. The parties were unable to resolve their differences, and Complainant requested an administrative hearing. The Registrar then issued a Citation for Alleged Violation of A.R.S. § 32-1154(A)(10). 4. The Registrar referred the matter to the Office of Administrative Hearings, an independent state agency, for an evidentiary hearing. 5. The Registrar issued a Notice of Hearing, setting a hearing at 1:00 p.m. on May 4, 2016. The Registrar mailed copies of the Notice of Hearing to Respondent at its address of record. 6. The Notice of Hearing informed the parties that “[f]ailure to attend the scheduled hearing is likely to result in an adverse ruling against you.” 7. A hearing was held on May 4, 2016. Respondent did not request to appear telephonically and did not request that the hearing be continued. Although the start of the hearing was delayed 20 minutes, Respondent did not appear through an authorized member, employee, or attorney. Consequently, Respondent did not present any evidence to defend its license. 8. Kip Cunningham, Complainant’s President, testified that the total due to Complainant was $47,635.24 less a payment of $5,000.00 received in January 2016. Mr. Cunningham stated that Complainant had performed all the work required under its contract with Respondent and had sent three invoices to Respondent including a September 22, 2015 invoice for $32,153.79, an October 12, 2015 invoice for $10,717.93; and a December 18, 2015 invoice for $4,763.52, for a total of $47,635.24. Mr. Cunningham acknowledged receipt of $5,000.00 from Respondent. 9. Administrative notice is taken of Respondent’s prior License record as reflected on the Registrar’s public website on May 4, 2016. Such prior License record reflects that Respondent’s License No. 218052 was first issued on March 23, 2006 and was current. Such prior License record also reflects one open complaint against Respondent’s license and one prior complaint that was resolved or settled. CONCLUSIONS OF LAW 1. The copies of the Notice of Hearing that the Registrar mailed to Respondent at its address of record and at the address on its written answer were reasonable and Respondent is deemed to have received notice of the hearing. A.R.S. §§ 41-1092.04 and 41-1092.05(D). 2. 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 these matters is by a preponderance of the evidence. See A.A.C. R2-19-119. 3. A preponderance of the evidence is “such proof as convinces the trier of fact that the contention is more probably true than not.” Morris K. Udall, Arizona Law of Evidence § 5 (1960). 4. 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 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.

5. The evidence established that Respondent owed a total of $42,635.24 for Complainant’s work on the Sierra Wind project. 6. Therefore, Complainant established that Respondent violated A.R.S. § 32-1154(A)(10) by failing to pay Complainant $42,635.24 for services or materials rendered in connection with Respondent’s contracting business. 7. 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 Tri Signal Integration Inc.’s License No: 218052 issued by the Registrar until it has provided to the Registrar, and the Registrar has accepted, documents that establish that it has paid Complainant $42,635.24 in certified funds. It is further recommended that when and if the Registrar receives and accepts Respondent’s evidence that it has paid Complainant $42,635.24 in certified funds, the Registrar may close the Complaint in Case No. 2016- 199. 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. Done this day, May 4, 2016.

/s/ Tammy L. Eigenheer Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director Registrar of Contractors -----------------------

Office of Administrative Hearings 1400 West Washington, Suite 101 Phoenix, Arizona 85007 (602) 542-9826