ALJDEC decisions subject to certification as final

2017A-5416-NPC-ROC · Registrar of Contractors · 2018-02-13

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Qualified Commercial Electronics Co. Inc.,

COMPLAINANT,

v.

Infinity Fire Protection LLC ,

License No. CR16.185986-D,

RESPONDENT.

No. 2017A-5416-NPC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: February 7, 2017, at 1:00 p.m.

APPEARANCES: Qualified Commercial Electronics Co. Inc. (“Complainant”) appeared through Richard Eugene Robinson, its qualifying party/officer; Infinity Fire Protection LLC (“Respondent”) was represented by J. Gregory Cahill, Esq., Dickinson Wright PLLC.

ADMINISTRATIVE LAW JUDGE: Diane Mihalsky

_____________________________________________________________________

FINDINGS OF FACT

Background and Procedure

On or about July 5, 1990, the Arizona Registrar of Contractors (“the Registrar”) issued License No. CR67-086888-D for dual low voltage communications systems to Complainant.

On or about June 10, 2003, the Registrar issued License No. CR16.185986-D for dual fire protection systems to Respondent.

On October 26, 2017, Complainant filed a complaint with the Registrar alleging that Respondent owed Complainant a total of $5,923.50 for work that Complainant had performed at the Redeemed International Church of God, 8140 W. Country Gables Dr., Peoria 85381.

On November 15, 2017, the Registrar issued a Citation for Alleged Violation of A.R.S. § 32-1154(A)(10) against Respondent.

Respondent filed a timely written answer to the Citation, denying any violation of A.R.S. § 32-1154(A)(10).

The Registrar referred the matter to the Office of Administrative Hearings, an independent state agency, for an evidentiary hearing.

A hearing was held on February 7, 2018. Complainant submitted eleven exhibits and presented the testimony of three witnesses: (1) Complainant’s qualifying party/officer, Rick Robinson; (2) Joe Villaseñor, a member of the Redeemed International Church of God, who had been tasked with updating its fire alarm system; and (3) Nate Roth, Complainant’s employee who performed some of the work described on the invoice for which Complainant sought payment from Respondent. Respondent submitted eight exhibits and presented the testimony of three witnesses: (1) John Nielson, who works for Service 1st Fire Protection, which is mainly a service company, but which also installs new fire systems and holds a CR67 license; (2) Clint Summers, a retired City of Glendale firefighter who has also operated a fire protection service company and has held a CR67 license; and (3) Gene Cooper, Respondent’s qualifying party/member.

Additional Hearing Evidence

Complainant installed a fire alarm system at the Redeemed International Church of God several years ago. Mr. Villaseñor testified that the church was well satisfied with Complainant’s work and that the church relied upon Mr. Robinson for its fire protection needs.

At some time, the Redeemed International Church of God decided to upgrade its fire alarm system to add a fire sprinkler system. Because this work was beyond the scope of Complainant’s CR67 license for low voltage communications systems, Complainant subcontracted installation of the sprinkler system to Respondent.

Between March and May, 2017, Respondent installed a sprinkler system at the Redeemed International Church of God.

Mr. Cooper testified that he performed most of the work on the sprinkler system at the Redeemed International Church of God. Mr. Cooper explained that because Respondent used one point of entry into the attic that had blown-in insulation, Respondent’s workers stepped in the same place repeatedly over the four weeks that Respondent was installing the sprinkler system.

Mr. Cooper informed Mr. Robinson that some of the wires in the attic for the fire alarm system might have come loose during the time Respondent installed the fire sprinkler system due to its workers repeatedly stepping on the blown-in insulation.

After Respondent finished its work on the fire sprinkler system, Mr. Robinson testified that the fire panel started sending repeated alarm codes to the Fire Department. Mr. Robinson testified that he did not tell Mr. Cooper that the alarm system was malfunctioning or request Respondent’s help in trouble-shooting or repairing the system because the Fire Department had told Complainant to fix the problem ASAP.

Over the next few months, Complainant trouble-shot the alarm signals and made several repairs, including replacing the control panel, replacing 6-8 smoke detectors, and repairing wiring.

On August 10, 2017, Complainant sent an invoice to Respondent in the amount of $5,923.50 for the time and material that Complainant had spent trouble-shooting and repairing the fire alarm system at the Redeemed International Church of God. This was the first notice to Respondent of any problem allegedly caused by its installation of the sprinkler system.

Mr. Cooper testified that Complainant still owes Respondent $2,350.00 under the parties’ subcontract and that the sprinkler system passed the City of Peoria’s inspection.

The parties both presented evidence on the reasonableness or unreasonableness of Complainant’s charges. At this time, the Administrative Law Judge makes no finding as to liability or damages.

CONCLUSIONS OF LAW

A.R.S. § 32-1154(A)(10) includes among the grounds for suspension, revocation of a contractor’s license, the following:

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.

(Emphasis added.) In its claim for non-payment, Complainant claims that Respondent is liable for damages based on its alleged negligent performance of its subcontract to install a sprinkler system at the Redeemed International Church of God. Respondent did not know about Complainant’s claim until it received its invoice. Complainant’s claim against Respondent is not for materials or services that Complainant rendered in connection with Respondent’s operations as a contractor.

The legislature has not empowered either the Office of Administrative Hearings or the Registrar to adjudicate or award money damages. Because the Arizona Legislature has not given the Registrar jurisdiction to liquidate or award monies for Complainant’s tort claim for consequential damages allegedly caused by Respondent’s negligent performance of its contract to install a sprinkler system at the Redeemed International Church of God, the Administrative Law Judge does not make any recommendation except that the Registrar dismiss Complainant’s complaint for lack of jurisdiction and leave the parties to seek their remedy in a court of competent civil jurisdiction.

RECOMMENDED ORDER

Based on the foregoing, it is recommended that on the effective date of the final order in this matter, Complainant Qualified Commercial Electronics Co. Inc.’s complaint in Case No. 2017-5416 against Respondent Infinity Fire Protection LLC’s License No. CR16.185986-D shall be dismissed.

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 five days from the date of that certification.

Done this day, February 13, 2018.

/s/ Diane Mihalsky

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors