ALJDEC - Licensing

2024A-12524-NPC-ROC · Registrar of Contractors · 2025-02-24

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Mobile Mix,

COMPLAINANT

v.

Dynatek Energy Solutions Inc

License No. ROC 346855,

RESPONDENT

No. 2024A-12524-NPC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: February 3, 2025 at 3:00pm

APPEARANCES: Shelley Kranich on behalf of Complainant; Jessica Kranich, Complainant Observer. Philip Armstrong on behalf of Respondent.

ADMINISTRATIVE LAW JUDGE: Nicole Robinson

EXHIBITS ADMITTED INTO EVIDENCE: Arizona Registrar of Contractors Hearing Packet (“Packet”).

FINDINGS OF FACT

Dynatek Energy Solutions, Incorporated (“Respondent”) is the holder of License No. ROC 346855 issued by the Registrar of Contractors (“Registrar”).

On or about November 11, 2024, Mobile Mix (“Complainant”) filed a Complaint against Respondent with the Registrar alleging that Respondent had failed to pay Complainant the sum of $36,301.00 for providing low grade concrete aggregate mix.

On November 21, 2024, the Registrar issued a Citation for Alleged Violation of Ariz. Rev. Stat. § 32-1154(A)(10). The parties were unable to resolve their differences, and Complainant requested an administrative hearing on December 11, 2024.

Hearing Evidence

Shelley Kranich on behalf of Complainant testified that this was a massive Google Fiber Project in Mesa, Arizona. Complainant provided the slurry backfill (a low grade concrete aggregate mix) for Respondent with whom they subcontracted on this project. Complainant performed the work from August 2024 to September 2024, which equated to approximately 30 deliveries of the slurry backfill. Respondent paid Complainant $12,554.00 on September 9, 2024, in a wire transfer. Ms. Kranich testified that Complainant is still owed $36,301.00, that there had been no attempt to communicate, and that Respondent had been “dodging calls.”

Philip Armstrong testified on behalf of Respondent. Mr. Armstrong explained that Blue Edge Infrastructure negotiated a contract with Google and then obtained subcontractors to perform the work. Respondent installed the fiber optic lines underground and hired Complainant to backfill those street trenches so the conduit was not exposed. Mr. Armstrong testified that Respondent billed Blue Edge $3.1 Million dollars and only received $2.5 Million. Mr. Armstrong further explained that although they received $2.5 Million that Respondent’s cash flow was in the negative and it never had positive cash flow. Mr. Armstrong contended that during the project that Respondent was selling off company assets and was involved in a civil court case with Blue Edge to recoup the rest of its contracted monies.

Respondent did not assert that it lacked the capacity to pay the amount Complainant asserted was due. However, in Respondent’s answer to the Registrar, Mr. Armstrong wrote that “[w]hen we collect from Blue Edge, [Respondent] will be happy to pay [Complainant].”

Administrative notice is taken of Respondent’s prior License record on February 3, 2025. Such prior License record reflects that Respondent’s License No. ROC 346855 was first issued on August 3, 2023, and is Suspended due to a lack of bond.

CONCLUSIONS OF LAW

Respondent’s suspended license does not deprive Complainant of its right to prosecute it complaint or prevent the Registrar from determining the merits of the complaint.

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.

A preponderance of the evidence means “proof which leads the [trier of fact] to find that the existence of the contested fact is more probable than its nonexistence.”

Ariz. Rev. Stat. § 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 $36,301.00 to Complainant for the materials and labor it provided on the Google fiber project.

Respondent failed to establish by a preponderance of the evidence that it lacked the ability to pay Complainant for the work performed. In fact, Mr. Armstrong testified that Respondent was paid $2.5 Million from Blue Edge. Although, that was not the total amount owed to Respondent, it received some of the contracted amount of money, which was more than the total amount owed to Complainant.

Therefore, Complainant established that Respondent violated Ariz. Rev. Stat. § 32-1154(A)(10) by failing to pay Complainant $36,301.00 for services or materials rendered in connection with Respondent’s contracting business. Based upon Respondent’s violation of the provisions of Ariz. Rev. Stat. § 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 Respondent’s License No. ROC 346855 issued by the Registrar until it has provided to the Registrar, and the Registrar has accepted, documents that establish that it has paid Complainant $36,301.00 in certified funds.

It is further recommended that when and if the Registrar receives and accepts Respondent’s evidence that it has paid Complainant $36,301.00 in certified funds, the Registrar may close the Complaint in Case No. 2024-12524.

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, February 24, 2025.

/s/ Nicole Robinson

Administrative Law Judge

Transmitted by either mail, e-mail, or facsimile to:

Tom Cole, Director

Registrar of Contractors

c/o Legal Department

1700 W. Washington Street, Suite 105

Phoenix, AZ 85007

[email redacted]

Mobile Mix

4939 W Ray Road, Suite 344

Chandler, AZ 85226

[email redacted]

Dynatek Energy Solutions Inc.

424 Niles Vienna Road

Vienna, OH 44473

[email redacted]

By: OAH Staff