ALJDEC decisions subject to certification as final

2021A-03116-NPC-ROC · Registrar of Contractors · 2021-10-27

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Builder Services Group Inc.,

COMPLAINANT

Active Power Solutions LLC

License No. ROC 308451,

RESPONDENT

No. 2021A-03116-NPC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: October 8, 2021

APPEARANCES: Shannon Larios, Regional Credit Manager, appeared on behalf of Complainant Builder Services Group Inc. Charles Dalmolin, General Manager, appeared on behalf of Respondent Active Power Solutions LLC.

ADMINISTRATIVE LAW JUDGE: Tammy L. Eigenheer

_____________________________________________________________________

FINDINGS OF FACT

Active Power Solutions LLC (Respondent) is the holder of License No. 308451 issued by the Registrar of Contractors (Registrar).

On or about July 6, 2021, Builder Services Group Inc. (Complainant) filed a Complaint against Respondent with the Registrar alleging that Respondent had failed to pay Complainant the sum of $1924.85 for work performed on a project.

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).

Shannon Larios, Regional Credit Manager, testified that the total due to Complainant was $1924.85. Ms. Larios stated that, to the best of her knowledge, Complainant had performed all of the work required of it under the contract, but acknowledged that she had no evidence of such.

Charles Dalmolin, General Manager, testified that Respondent had not actually entered into the contract with Complainant. According to Mr. Dalmolin, Respondent forwarded the contract to Spirit Electronics. Marty McCurdy, the Owner of Spirit Electronics, signed the contract and returned it to Respondent, who returned the signed contract to Complainant. Mr. Dalmolin also referenced an email from Jerry Reyes of ALC Designers LLC who reviewed the complaint filed by Complainant and responded, in pertinent part, as follows:

I read through the Complaint and Yes you are correct that there are portions of their proposal for work which did not get completed. As you know our firm was contracted by the Owner of Spirit Electronics and the General Contractor PJ Hussey Construction to provide Construction Management services for the Tenant Improvement of Suite 2 at the Spirit Electronics Facility. Regarding the Work performed by USI Mesa Insulation, none of the Exterior wall insulation was installed as those existing steel furred walls (which contained Foam insulation from original construction, not Fiberglass Insul.) were demolished during construction of Suite 2 and new wood framed walls were constructed where needed. These Walls were insulated by one of our Subcontractors who also installed the Drywall for Suite 2. Additionally to my knowledge, there was No insulation installed by USI Mesa Insulation in the Soffit areas of Suite 2. We had our Sub-Contractor who installed the Drywall and insulation for us to also lay R-38 Fiberglass Insulation Sheets, which we used for the Ceilings of the New construction, inside the Soffit areas of Suite 2 because there was no current insulation present.

I was also under the impression this bill was paid for by Spirit Electronics directly as I communicated with the Owner and their AP Department regarding release of final payment pending our approval for work that has been performed and completed.

Respondent did not assert that it lacked the capacity to pay the amount Complainant argued 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 $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.

Complainant failed to establish that it had performed all of the work under the contract, and that as a result, it was owed any sum on that contract. The issue of whether Complainant had contracted with Respondent or with Spirit Electronics directly need not be resolved if the contract had not been completed.

Therefore, Complainant failed to establish that Respondent violated A.R.S. § 32-1154(A)(10) by failing to pay Complainant for services 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

It is recommended that on the effective date of the Registrar’s final order in this matter, the Registrar close Complainant Builder Services Group Inc.’s complaint in Case No. 2021-03116 against Respondent Active Power Solutions LLC’s License No. 308451.

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, October 27, 2021.

/s/ Tammy L. Eigenheer

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors-54864001

001

-137160-45720000