ALJDEC decisions subject to certification as final

08F-3231-ROC · Registrar of Contractors · 2009-02-23

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: February 11, 2009. APPEARANCES: K P M Pool Construction, Inc. was represented by its president and qualifying party, Kevin P. Murray. K B Pool Supply, LLC, doing business as Jardin, did not appear. ADMINISTRATIVE LAW JUDGE: Brian Brendan Tully _____________________________________________________________________ Based upon the evidence of record, the Administrative Law Judge makes the following Findings of Fact, Conclusions of Law and Recommended Order:

FINDINGS OF FACT 1. K P M Pool Construction, Inc. (“Complainant”) is the holder of License No. 186804 issued by the Registrar of Contractors (“Registrar”). 2. K B Pool Supply, LLC, doing business as Jardin (“Respondent”), is the holder of License No. 217089, a Class K-06 contracting license, issued by the Registrar. 3. In 2007, Complainant performed work for Respondent on five projects. Respondent owes Complainant approximately $6,500.00 for the work, but has not paid the outstanding balance. 4. Complainant filed a written Complaint with the Registrar due to Respondent’s failure to pay the outstanding balance. 5. The Registrar designated Complainant’s Complaint as Case No. 08-3231. 6. The Registrar issued a Citation and Complaint in Case No. 08-3231 alleging possible violations by Respondent of A.R.S. § 32-1154(7) and (11) for failing to pay Complainant the outstanding balance owed by Respondent. 7. The Registrar forwarded Case No. 08-3231 to the Office of Administrative Hearings, an independent agency, for formal hearing. 8. The Registrar issued a Notice of Hearing in Case No. 08-3231 advising the parties of the time, date and location of the evidentiary hearing. The Notice of Hearing was sent to the parties at their addresses of record with the Registrar. 9. The commencement of the scheduled hearing was delayed 15 minutes to allow for the late arrival of an authorized representative for Respondent. After the delay the Administrative Law Judge conducted the hearing in Respondent’s absence. 10. Respondent failed to pay Complainant approximately $6,500.00 for the five subject projects. 11. Respondent’s failure to pay the outstanding balance owed to Complainant is a wrongful act that substantially injured Complainant. 12. A review of the Registrar’s official records reveals that Respondent’s contracting license was revoked on December 29, 2008 in two other cases. Respondent’s license has two open complaints, two disciplined complaints, and three resolved/settled/withdrawn complaints.

CONCLUSIONS OF LAW 1. The Registrar has jurisdiction over Respondent and the subject matter in this case. 2. Pursuant to A.R.S. § 32-1154(C), the revocation of Respondent’s contracting license does not deprive the Registrar to impose additional disciplinary penalties for proven statutory violations in this case. 3. Pursuant to A.A.C. R2-19-119(B), Complainant has the burden of proof in this matter. The standard of proof is preponderance of the evidence. A.A.C. R2-19-119(A). 4. Respondent violated the provisions of A.R.S. § 32-1154(A) (7) and (11), as cited in the Citation and Complaint issued by the Registrar.

RECOMMENDED ORDER Respondent’s License No. 217089 shall be revoked in Case No. 08-3231 on the effective date of the Order entered in that matter. 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 45 days from the date of that certification. Done this day, February 23, 2009

______________________________________ Brian Brendan Tully Administrative Law Judge

Original transmitted by mail this ____ day of ____________, 2009, to:

William A. Mundell, Director Registrar of Contractors 3838 N. Central Ave. Phoenix, AZ 85012

By ___________________________ -----------------------

Office of Administrative Hearings 1400 West Washington, Suite 101 Phoenix, Arizona 85007 (602) 542-9826