ALJDEC decisions subject to certification as final

2016A-4356-ROC · Registrar of Contractors · 2017-02-22

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

EcoKong Inc,

COMPLAINANT,

v.

Fleenor Construction LLC,

License No: 289501

RESPONDENT.

No. 2016A-4356-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: February 2, 2017

APPEARANCES: Hugh Wolf, Managing Director, appeared on behalf of Complainant EcoKong Inc. Jennifer Hilsbos, Project Manager, appeared on behalf of Respondent Fleenor Construction LLC.

ADMINISTRATIVE LAW JUDGE: Tammy L. Eigenheer

_____________________________________________________________________

FINDINGS OF FACT

Fleenor Construction LLC (Respondent) is the holder of License No. 289501 issued by the Registrar of Contractors (Registrar).

On or about November 1, 2016, EcoKong Inc. (Complainant) filed a Complaint against Respondent with the Registrar alleging that Respondent had failed to pay Complainant the sum of $1453.00 for energy audits Complainant performed for Respondent’s customers.

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).

Hugh Wolf, Complainant’s Managing Director, testified that the total due to Complainant was $1453.00. Mr. Wolf stated that Complainant had performed six test-in audits for Respondent and one test-out audits from August 5, 2016, through October 6, 2016. Complainant was to be paid $275.00 per test-in audit and $100.00 per test-out audit. Mr. Wolf asserted that Complainant was paid only $297.00 directly from the three homeowners, and received no payments from Respondent.

Jennifer Hilsbos, Respondent’s Project Manager, testified that Complainant did not complete all six of the test-in audits in that two of the audits had certain information missing that was necessary to obtain a credit from SRP or APS. Ms. Hilsbos indicated that Respondent offered to pay Complainant the balance of $903.00 owing on the other audits. Ms. Hilsbos argued that the claim may not even fall under the purview of the Registrar given that there was no guarantee the audits would result in any contracting work for Respondent.

Respondent did not assert that it lacked the capacity to pay the amount Complainant asserted was due.

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 these matters is by a preponderance of the evidence. See A.A.C. R2-19-119.

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).

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.

The evidence established that Respondent owed a total of $903.00 for the completed test-in and test-out audits. Complainant did not establish that it had completed the two remaining test-in audits such that payment for those audits was due.

Respondent failed to establish by a preponderance of the evidence that it lacked the ability to pay Complainant for the work performed.

Therefore, Complainant established that Respondent violated A.R.S. § 32-1154(A)(10) by failing to pay Complainant $903.00 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 Fleenor Construction LLC’s License No: 289501 issued by the Registrar until it has provided to the Registrar, and the Registrar has accepted, documents that establish that it has paid Complainant $903.00 in certified funds.

It is further recommended that when and if the Registrar receives and accepts Respondent’s evidence that it has paid Complainant $903.00 in certified funds, the Registrar may close the Complaint in Case No. 2016-4356.

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, February 22, 2017.

/s/ Tammy L. Eigenheer

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors