ALJDEC decisions subject to certification as final

2010A- 308472243-ROC · Registrar of Contractors · 2011-05-13

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: April 26, 2011 APPEARANCES: McCormick Construction Co. was represented by its attorney, Steven C. Moss, Esq. B 3 Engineering, Inc., doing business as Spirit Underground, was represented by its attorney, Daryl M. Williams, Esq. 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. McCormick Construction Co. (“Complainant”) is the holder of License No. 073438 issued by the Registrar of Contractors (“Registrar”). 2. B 3 Engineering, Inc., doing business as Spirit Underground (“Respondent”), is the holder of License No.188247, a Class A contracting license issued by the Registrar. 3. Complainant was Respondent’s subcontractor on the Palm Tree Sewer Expansion Project in Lake Havasu City, Arizona. 4. On April 6, 2010, Complainant filed a written Complaint with the Registrar alleging statutory and regulatory violations by Respondent on the subject project. The Registrar designated the Complaint as Case No. 2010-[number redacted]. 5. The Registrar issued a Citation and Complaint in Case No. 2010- [number redacted] charging Respondent with violating the provisions of A.R.S. § 32-1154(A) (3), namely A.A.C. R4-9-108 and A.A.C. R4-9-109, (10), (13), specifically A.R.S. §§ 32-1124(B) and 32-1129, (14), (15), and (16). 6. The Registrar forwarded Case No. 2010-[number redacted] to the Office of Administrative Hearings, an independent agency, for an evidentiary hearing. 7. At the commencement of the hearing, counsel announced that the parties had reached a stipulation that all issues, with the exception of licensing issues, would be withdrawn in this matter. Those other issues were addressed in the parties’ civil arbitration.[1] 8. Respondent has conducted business in a name other than the one appearing on its contracting license. Respondent conducted business as Spirit Underground, L.L.C. Respondent is an Arizona corporation doing business as Spirit Underground. Neither Respondent nor Spirit Underground is a limited liability company. 9. Respondent failed to properly list its contracting license number on its contract with Complainant. CONCLUSIONS OF LAW 1. The Registrar has jurisdiction over Respondent and the subject matter in this case. 2. Pursuant to A.A.C. R2-19-119(B), Complainant has the burden of proof in this matter. The standard of proof is by a preponderance of the evidence. A.A.C. R2-19-119(A). 3. As a result of the parties’ stipulation, the allegations that Respondent violated the provisions of A.R.S. § 32-1154(A) (3), namely A.A.C. R4-9-108, and A.R.S § 32-1129, are deemed withdrawn. 4. Respondent violated the provisions of A.R.S. § 32-1154(A) (3), namely A.A.C. R4-9-109, and (15) by conducting business in the name of Spirit Underground, L.L.C., which is neither a true legal entity nor the name appearing on Respondent’s contracting license. 5. The evidence of record does not support a conclusion that Respondent aided and abetted an unlicensed contractor in violation of A.R.S. § 32- 1154(A) (10), as charged in the Citation and Complaint issued by the Registrar. 6. Respondent violated the provisions of A.R.S. § 32-1154(A) (13), specifically A.R.S. § 32-1124(B) by not properly listing its contracting license number on its subcontract with Complainant, as charged in the Citation and Complaint issued by the Registrar. 7. The evidence of record does not support a conclusion that Respondent contracted beyond the scope of its Class A contracting license in violation of A.R.S. § 32-1154(A) (14), as charged in the Citation and Complaint issued by the Registrar. 8. The evidence of record does not support a conclusion that Respondent used “false, misleading or deceptive advertising” resulting in Complainant being “misled and injured” in violation of A.R.S. § 32- 1154(A) (16), as charged in the Citation and Complaint issued by the Registrar. RECOMMENDED ORDER Respondent’s License No. 188247 shall be suspended on the effective date of the Order entered in Case No. 2010-[number redacted] until Respondent provides written proof to the Registrar, and the Registrar approves such proof, that Respondent has fully complied with the requirements of A.R.S. § 32-1154(A) (15) and A.A.C. R4-9-109. If Respondent provides written proof to the Registrar that Respondent has become fully compliant with the requirements of A.R.S. § 32-1154(A) (15) and A.A.C. R4-9-109, on or before the effective date of the Order entered in Case No. 2010-[number redacted], and the Registrar approves proof of such compliance, then the above-provided license suspension shall not take place and the Citation and Complaint in Case No. 2010-[number redacted] shall be closed. 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 40 days from the date of that certification.

Done this day, May 13, 2011.

/s/ Brian Brendan Tully Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors ----------------------- [1] As of the date of the hearing, the arbitrator’s award had not been issued.

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