ALJDEC decisions subject to certification as final

2021A-00173-NPC-ROC · Registrar of Contractors · 2021-04-21

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Kennedy Air Technologies LLC,

COMPLAINANT

Brantner Group LLC,

License No. ROC 305326,

RESPONDENT

No. 2021A-00173-NPC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: April 12, 2021

APPEARANCES: Bruce Kennedy, Owner and Qualifying Party, appeared on behalf of Complainant Kennedy Air Technologies LLC. David Brantner, Owner and Qualifying Party, appeared on behalf of Respondent Brantner Group LLC.

ADMINISTRATIVE LAW JUDGE: Tammy L. Eigenheer

_____________________________________________________________________

FINDINGS OF FACT

Brantner Group LLC (Respondent) is the holder of License No. 305326 issued by the Registrar of Contractors (Registrar).

On or about January 15, 2021, Kennedy Air Technologies LLC (Complainant) filed a Complaint against Respondent with the Registrar alleging that Respondent had failed to pay Complainant the sum of $4,992.00 for the installation of a cooling unit in a wine room.

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).

Mr. Kennedy testified Complainant installed a cooling unit in the wine room of a new home constructed by Respondent. After the installation, the unit had Freon leaks, which Complainant attempted to correct on more than one occasion. Mr. Kennedy stated that after the repeated problems, Respondent informed Complainant that the homeowner wanted to upgrade the unit to keep the wine room at a lower temperature than the original unit was intended to operate at. Mr. Kennedy asserted there was no reason to replace the unit other than because the homeowner made that decision. Mr. Kennedy denied there was any issue with the sizing of the original unit relative to the wine room and materials used to construct it. Mr. Kennedy stated that he prepared a proposal for Respondent for the installation of the new unit. Mr. Kennedy indicated the proposal did not include any labor charges. Respondent accepted the proposal and entered into a new contract with Complainant for the installation of the new unit for the total cost of $4,992.00. Mr. Kennedy asserted that the total due to Complainant was $4,992.00.

Mr. Brantner testified that he believed the original unit was the wrong size because Complainant improperly calculated because Complainant wrongly identified the glass in the wine room was insulated glass as opposed to the non-insulated glass that was used. Mr. Brantner argued that the part necessary to maintain the lower temperature in the wine room was merely a module added to the installed unit that cost around $600.00. Mr. Brantner acknowledged that Respondent agreed to the proposal for the new unit as presented by Complainant, but argued that his “only option was to sign to get it done.” Mr. Brantner asserted that the original unit had to be replaced regardless of whether the homeowners requested the lower temperature in the wine room.

Respondent did not assert that it lacked the capacity to pay the amount Complainant asserted was due or had not been paid by the homeowner.

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 $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 evidence established that Respondent owed a total of $4,992.00 for the installation of the new wine cooler. While Respondent argued that it had “no option” but to enter into the new contract, Respondent knowingly entered into the new contract. Respondent did not file a complaint with the Registrar regarding the alleged workmanship issues concerning the original cooling unit.

Respondent failed to establish by a preponderance of the evidence that it lacked the ability to pay Complainant for the work performed or had not been paid sufficient funds from the homeowner.

Therefore, Complainant established that Respondent violated A.R.S. § 32-1154(A)(10) by failing to pay Complainant $4,992.00 for services and 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 Brantner Group LLC’s License No: 305326 issued by the Registrar until it has provided to the Registrar, and the Registrar has accepted, documents that establish that it has paid Complainant $4,992.00 in certified funds.

It is further recommended that when and if the Registrar receives and accepts Respondent’s evidence that it has paid Complainant $4,992.00 in certified funds, the Registrar may close the Complaint in Case No. 2020-00173.

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.

-54864001

001

-137160-45720000Done this day, April 21, 2021.

/s/ Tammy L. Eigenheer

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors-54864001

001

-137160-45720000