ALJDEC decisions subject to certification as final

2011A-554-ROC · Registrar of Contractors · 2011-08-24

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: August 22, 2011. APPEARANCES: Larry Marshall McCall, doing business as McCall Construction, appeared personally. Kevin Darren Olive, doing business as So Cal Excavating, 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. Larry Marshall McCall, doing business as McCall Construction (“Complainant”), is the holder of License Nos. 081761 and 169662 issued by the Registrar of Contractors (“Registrar”). 2. Kevin Darren Olive, doing business as So Cal Excavating (“Respondent”), is the holder of License No. 249224, a Class A contracting license issued by the Registrar. License No. 249224 is not held by So Cal Excavating, L.L.C, a separate legal entity.[1] 3. On January 24, 2011, Complainant filed a Complaint with the Registrar alleging nonpayment in the amount of $4,877.69 by Respondent to Complainant for Complainant’s supplying and delivering aggregate material and for a dump truck rental for Respondent on a project at the Hualapai Cultural Center in Peach Springs, Arizona. The Registrar designated the Complaint as Case No. 2011-554. 4. The Registrar issued a Citation and Complaint in Case No. 2011-554 charging Respondent with violating the provisions of A.R.S. § 32- 1154(A) (11). 5. The Registrar forwarded Case No. 2011-554 to the Office of Administrative Hearings, an independent agency, for an evidentiary hearing. 6. The Registrar issued a Notice of Hearing in Case No. 2011-554 that advised the parties of the time, date, and location of the formal hearing. The Notice of Hearing was sent to the parties at their addresses of record with the Registrar. 7. The commencement of the hearing was delayed 15 minutes to allow for the late arrival of Respondent or an attorney authorized to represent him. Present at the hearing were Complainant and Jackie Aguilar, the latter being an authorized representative for So Cal Excavating, L.L.C. Ms. Aguilar was under the belief that So Cal Excavating, L.L.C. was the holder of License No. 249224 and, therefore, the true Respondent in this matter. 8. The Administrative Law Judge recessed the hearing to review the Registrar’s official electronic licensing records. Those records reflect Kevin Darren Olive, a sole proprietor, as the true and correct holder of License No. 249224. The Registrar’s inspector, Cliff Corlett, verified that finding. The Administrative Law Judge informed Ms. Aguilar that she could not represent the Respondent in these proceedings, pursuant to Rule 31 of the Rules of the Arizona Supreme Court. Ms. Aguilar announced that Respondent would not be personally present at the hearing. The Administrative Law Judge conducted the hearing in Respondent’s absence. 9. Complainant performed his scope of work on the subject project on August 27, 2009. 10. Complainant presented credible evidence establishing that Respondent currently owes Complainant an outstanding balance of $2,753.00, plus accruing interest at the rate of 1 ½ % per month. 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. 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 currently owes Complainant the sum of $2,753.00, plus accruing interest at the rate of 1 ½ % per month on the outstanding balance due. RECOMMENDED ORDER Respondent’s License No. 249224 shall be suspended on the effective date of the Order entered in Case No. 2011-554 until the Registrar receives proof, and the Registrar approves such proof, that Respondent has paid Complainant the sum of $2,753.00, plus all accrued interest at the rate of ½% per month on the outstanding balance due. If Respondent provides the Registrar with proof that Respondent has paid Complainant the sum of $2,753.00, plus all accrued interest at the rate of 1 ½% per month on the outstanding balance due, on or before the effective date of the Order entered in Case No. 2011-554, and the Registrar approves the proof of such payment in full, then the above-provided license suspension shall not take place. In addition to the foregoing license suspension, if any, Respondent’s License No. 249224 shall be placed on probation for a period of 60 days commencing on the effective date of the Order entered in Case No. 2011-554 or the date on which the Registrar approves proof of Respondent’s payment in full to Complainant as provided above, whichever is later. 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, August 24, 2011.

/s/ Brian Brendan Tully Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors ----------------------- [1] At the hearing, a copy of a check from So Cal Excavating, L.L.C. to Complainant in the amount of $1,112.50 was admitted into evidence. However, the Registrar did not charge Respondent with violating the provisions of A.R.S. § 32-1154(A) (15).

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