ALJDEC decisions subject to certification as final

2021A-04564-NPC-ROC · Registrar of Contractors · 2022-01-03

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Felix Fire Protection LLC,

COMPLAINANT

Platinum Fire Protection LLC

License No. ROC 325245,

RESPONDENT

No. 2021A-04564-NPC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: December 13, 2021

APPEARANCES: Felix Gonzalez, Owner and Qualifying Party, appeared on behalf of Complainant Felix Fire Protection LLC. Joseph D’Elia, Owner and Managing Member, appeared on behalf of Respondent Platinum Fire Protection, which was represented by Ernest Collins.

ADMINISTRATIVE LAW JUDGE: Tammy L. Eigenheer

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FINDINGS OF FACT

Platinum Fire Protection LLC (Respondent) is the holder of License No. 325245 issued by the Registrar of Contractors (Registrar).

On or about September 15, 2021, Felix Fire Protection LLC (Complainant) filed a Complaint against Respondent with the Registrar alleging that Respondent had failed to pay Complainant the sum of $19,550.00 for work performed.

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).

Felix Gonzalez testified that the total due to Complainant was $19,550 on different projects with Respondent. Mr. Gonzalez acknowledged that the parties did not have any written contracts signed by both parties relating to the work on the projects. Mr. Gonzalez admitted that, in a text message exchange, Respondent offered to include the $10,000.00 Respondent owed for the Cube Smart project into the total due on the Lynn Village Project. Mr. Gonzalez denied that the conversation constituted a contract as it was not in writing or signed by either party.

Complainant presented the testimony of Gregory Allen Smith, of West Construction, who worked on the Lynn Village project with Complainant and Respondent. Mr. Smith recounted his experience with Respondent on the project including why Respondent was ultimately terminated from the project. Mr. Smith indicated that after the termination, Complainant was hired to complete the project and was paid for the work it performed on the project. Mr. Smith indicated that he engaged in a negotiation with Mr. Gonzalez as to the contract price and Complainant’s scope of work for the project.

Complainant also presented the testimony of Steve Heil, Vice President of Campbell Development, who worked on the Cube Smart Storage project. Mr. Heil testified that Campbell Development paid Respondent in full on the contract, which was approximately $165,000.00.

Joseph D’Elia, Owner and Managing Member, testified that Respondent did not have any contracts with Complainant and denied signing any proposals provided by Complainant. Mr. D’Elia did not deny that Complainant performed work on the projects at issue in this matter. Mr. D’Elia admitted that he proposed adding $10,000.00 to the Lynn Village project to make up for the balance owing on the Cube Smart Storage project. Mr. D’Elia asserted that Complainant interfered with Respondent’s contract on the Lynn Village project, resulting in its termination, and then stepped in to assume the contract. Mr. D’Elia argued that after Complainant assumed the contract, it was paid more on the Lynn Village project than Respondent owed Complainant on all the projects at issue.

Respondent did not assert that it lacked the capacity to pay the amount Complainant asserted was due or that it had not been paid on the projects at issue.

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.

Respondent’s text message regarding the $10,000.00 owing on the Cube Smart Storage project and suggesting that the balance due be added to the Lynn Village project proposal lends credibility to Complainant’s assertion that it was owed on all the projects at issue.

Respondent’s argument that Complainant was paid enough by the general contractor on the Lynn Village project to pay for Respondent’s amount due on all the projects, including the Cube Smart Storage project was not well taken. Even assuming the argument could be applicable to the Lynn Village project, Respondent’s assertion that payments from a third party, who entered into a separate contract with Complainant, could somehow be considered as payment on completely unrelated projects is legally insufficient.

Therefore, the evidence established that Respondent owed a total of $19,550.00 for work performed.

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 received sufficient monies as payment on the projects at issue.

Therefore, Complainant established that Respondent violated A.R.S. § 32-1154(A)(10) by failing to pay Complainant $19,550.00 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 Platinum Fire Protection LLC’s License No: 325245 issued by the Registrar until it has provided to the Registrar, and the Registrar has accepted, documents that establish that it has paid Complainant $19,550.00 in certified funds.

It is further recommended that when and if the Registrar receives and accepts Respondent’s evidence that it has paid Complainant $19,550.00 in certified funds, the Registrar may close the Complaint in Case No. 2021-04564.

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.

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-137160-45720000Done this day, January 3, 2022.

/s/ Tammy L. Eigenheer

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors

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-137160-45720000