ALJDEC - Licensing
2023A-14477-NPC-ROC · Registrar of Contractors · 2024-04-12
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
E A S Mechanical Contractors LLC,
COMPLAINANT
v.
ECS MECHANICAL, INC.
License No. ROC 328823,
RESPONDENT
No. 2023A-14477-NPC-ROC
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: March 26, 2024, 1:00 P.M.
APPEARANCES: Steven Thomas, Owner, appeared on behalf of Complainant; Edward Smith, Owner, appeared on behalf of Respondent
ADMINISTRATIVE LAW JUDGE: Roger Geddes
EXHIBITS ADMITTED INTO EVIDENCE: None submitted
_____________________________________________________________________
FINDINGS OF FACT
Background and Procedure
1. ECS Mechanical, Inc. (Respondent), is the holder of License Number 328823 issued by the Registrar of Contractors (Registrar).
2. On or about December 20, 2023, E A S Mechanical Contractors, LLC (Complainant), filed a Complaint against Respondent with the Registrar alleging the principal amount due of $21,250.00 from Respondent for commercial cooking materials and services Complainant provided to Respondent.
3. On January 12, 2024, the Registrar then issued a Citation for Alleged Violation of A.R.S. § 32-1154(A)(10) for the alleged failure by Respondent to pay monies in excess of $750.00 when due for materials or services rendered in connection with Respondent’s operations as a contractor. The Registrar referred the matter to the Office of Administrative Hearings, an independent state agency, for an evidentiary hearing.
4. The Registrar issued a Notice of Hearing that set a hearing for March 26, 2024, at 1:00 P.M. At the hearing, Complainant presented the testimony of Steven Thomas, Owner, and Tyler Anderson; Respondent presented the testimony of Edward Smith, Owner. Neither party submitted exhibits to the Tribunal.
5 Steven Thomas testified on behalf of Complainant, as herein relevant to the Citation, that Respondent paid $11,250.00 and another $7,000.00 was paid after the Complaint was filed and therefore a balance of $3,000.00 is owed. He stated that once he completed the work, there were other trades involved to make sure the system worked correctly. He further stated that the electrician was responsible for making all the electrical connections and to do a start-up. He further testified he was not given the opportunity to do any warranty work if in fact Complainant had caused the issue, and that his proposal excluded electrical wiring and connections/testing of fire suppression.
6. Tyler Anderson testified on behalf of Complainant, as herein relevant to the Citation, that he was an independent contractor working for Complainant and helped install the kitchen hood. He stated he was present when the electrician was starting the equipment up and that the electrician admitted that the electrician had not fully wired the system.
7. Edward Smith testified on behalf of Respondent, as herein relevant to the Citation, that he did not dispute the amount in question but that the amount is not presently due because the hood does not function according to the proposal. He stated the fire alarm control panel does not set off the alarm and therefore is not in compliance with the fire code and will not pass fire inspection. He further stated this has nothing to do with the electrician but has to do with the internal makeup of the control system, and that the electrician and fire suppression representative have been to the site several times to attempt to get the system to work. He further testified their invoices are in an amount just under $3,000.00, the amount withheld from Complainant.
8. Pursuant to Arizona Administrative Code Rule 4-9-117, administrative notice is taken of the Registrar’s public website which reflects Respondent was first issued the subject license on May 11, 2020. The site also reflects no Open Cases, no Disciplined Cases, and no Resolved/Settled cases.
CONCLUSIONS OF LAW
1. The Registrar has jurisdiction over this matter, pursuant to A.R.S. § 32-1101, et seq., which authorizes the Registrar to impose disciplinary sanctions against licenses for violations of A.R.S. § 32-1154.
2. 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 preponderance of the evidence. See Arizona Administrative Code Rule 2-19-119.
3. To warrant such sanctions by the Registrar, a Complainant must demonstrate by a preponderance of the evidence that Respondent violated the statutory section cited. Proof by a “preponderance” means that “the evidence is sufficient to persuade the finder of fact that the proposition is more likely true than not.” In re: Arnold and Baker Farms, 177 B.R. 648 (9th Cir. BAP (Ariz.) 1994). See also Culpepper v. State of Arizona, 187 Ariz. 431, 930 P.2d 508 (App. 1996). It is “evidence which is of greater weight or more convincing than the evidence which is offered in opposition to it; that is, evidence which as a whole shows that the fact sought to be proved is more probable than not.” BLACK’S LAW DICTIONARY 1182 (Rev. 6th ed. 1990).
4. A.R.S. § 32-1154(A)(10) included 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.
5. A.R.S. § 32-1154(A)(10). Complainant has satisfied its burden to demonstrate that Respondent has failed to pay Complainant the amount of $3,000.00 that had become due for materials or services rendered in connection with Respondent’s operations as a contractor. Respondent did not dispute that amount. Rather, in essence, Respondent seeks a chargeback in the amount of $3,000.00 because the system would apparently not pass the fire inspection. However, even if a chargeback was appropriate in a disciplinary action such as this, Respondent has failed to present sufficient evidence to support such a chargeback. First, Respondent has failed to present sufficient evidence to show that any failure of the system was in fact due to the work of Complainant, as opposed to other trades such as the electrician or the fire suppression trade. Further, Respondent failed to present the invoices for the electrician or fire suppression trade to substantiate the amounts Respondent allegedly incurred. Therefore, the Tribunal does not find that a chargeback would be warranted in this case.
6. There was no claim made or evidence presented that Respondent lacked the capacity to pay or that Respondent had not received sufficient monies as payment for the particular construction work project or operation for which Complainant’s services or materials were rendered.
7. In this matter, Complainant has established that Respondent’s license should be disciplined for a violation of A.R.S. § 32-1154(A)(10).
RECOMMENDED ORDER
Based on the foregoing, it is recommended that within seven (7) days of the effective date of this order, Respondent’s License Number 328823 is suspended until the Registrar receives and accepts written verification that Respondent has paid $3,000.00 to Complainant in certified funds.
It is further recommended that if and when the Registrar receives and accepts Respondent’s evidence that it has paid Complainant $3,000.00 in certified funds, the Registrar may close this Complaint.
Pursuant to A.R.S. § 41-1092.08(I), the licensee may accept the Administrative Law Judge Decision by advising the Office of Administrative Hearings in writing not more than ten (10) days after receiving the decision. If the licensee accepts the Administrative Law Judge Decision, the decision shall be certified as the final decision by the Office of Administrative Hearings.
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 forty (40) days from the date of that certification.
Done this day, April 12, 2024.
/s/ Roger Geddes
Administrative Law Judge
Transmitted electronically to:
Tom Cole
Director
Registrar of Contractors
c/o Legal Department
[email redacted]
ECS MECHANICAL, INC.
Email [email redacted]
E A S Mechanical Contractors LLC
Email [email redacted]
By: OAH Staff