ALJDEC decisions subject to certification as final

2010A-308475003-ROC · Registrar of Contractors · 2011-11-23

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: November 3, 2011 APPEARANCES: D L M Excavation and Construction, Inc. was represented by its authorized representative, Dean Matzdorff. Advanced Pool Concepts, Inc. was represented by its authorized representative, Bryce Campo. 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. D L M Excavation and Construction, Inc. (“Complainant”) is the holder of License Nos. 256545 and 173102 issued by the Registrar of Contractors (“Registrar”). 2. Advanced Pool Concepts, Inc. (“Respondent”) is the holder of License No. 179489, a Class B-5 general swimming pool contracting license issued by the Registrar. 3. On June 11, 2010, Respondent subcontracted with Complainant for excavation work to be performed by Complainant at 18431 W. Rancho Court, Litchfield Park, Arizona. 4. On August 9, 2010, Complainant filed a written Complaint with the Registrar alleging nonpayment by Respondent in the amount of $2,100.75 for 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) (11). 6. The Registrar forwarded Case No. 2010-[number redacted] to the Office of Administrative Hearings, an independent agency, for an evidentiary hearing. 7. At hearing, Complainant announced that the present outstanding balance owed to it by Respondent is $1,200.00. That amount reflects offsets by Respondent agreed upon by Complainant 8. Complainant’s workers performed the excavation at the direction of Respondent’s qualifying party, Bryce Campo. 9. Respondent contended that it incurred additional expenses because excavated dirt had to be removed beyond six feet from the pool to allow access by the plumbers. However, the weight of credible evidence established that Respondent never gave Complainant’s workers instructions to move the excavated dirt beyond six feet from the pool. Therefore, Respondent failed to establish an entitlement to an offset for the costs of moving such dirt. 10. A review of the Registrar’s official electronic licensing records reveals that Respondent’s License No. 179489 was revoked on August 24, 2011. 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 of the authority to impose discipline upon that license for proven statutory violations in this matter. 3. 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). 4. Respondent violated the provisions of A.R.S. § 32-1154(A) (11), as charged in the Citation and Complaint issued by the Registrar. The evidence of record established that Respondent owes Complainant the sum of $1,200.00. RECOMMENDED ORDER Respondent’s License No. 179489 shall be revoked on the effective date of the Order entered in Case No. 2010-[number redacted]. If Respondent provides the Registrar with written proof that Respondent has paid Complainant the sum of $1,200.00 on or before the effective date of the Order entered in Case No. 2010-[number redacted], and the Registrar approves such proof of payment, then the above-provided license revocation 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, November 23, 2011.

/s/ Brian Brendan Tully Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors -----------------------

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