ALJDEC decisions subject to certification as final
2016A-4578-NPC-ROC · Registrar of Contractors · 2017-02-21
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
Keep'n It Blue LLC,
KEEP’N IT BLUE,
v.
Brandenburg Pool Repair & Remodeling Inc
DBA: Brandenburg Outdoor ,
License No: 185012, 257591, 294284
BRANDENBURG POOL.
No. 2016A-4578-NPC-ROC
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: February 1, 2017
APPEARANCES: Chad Reed appeared on behalf of Complainant Keep'n It Blue LLC. No one appeared on behalf of Respondent Brandenburg Pool Repair & Remodeling Inc. DBA: Brandenburg Outdoor.
ADMINISTRATIVE LAW JUDGE: Velva Moses-Thompson
FINDINGS OF FACT
Keep’n It Blue LLC, (hereinafter “Keep’n It Blue”), and Brandenburg Pool Repair
& Remodeling Inc. DBA; Brandenburg Outdoor, (hereinafter “Brandenburg Pool”), entered into an agreement wherein Brandenburg Pool agreed to pay Keep’n It Blue for referral services. Brandenburg Pool is a general pool services contractor.
Chad Reed is the owner of Keep’n it Blue. Dave Brandenburg was the owner of
Brandenburg Pool.
In March of 2016, Keep’n It Blue and Brandenburg Pool agreed that instead of
paying Keep’n It Blue for each referral, Brandenburg Pool would give Chad Reed a credit toward a pool remodeling project at Chad Reed’s residence.
Brandenburg Pool drafted a bid for the remodeling of Chad Reed’s pool dated
March 25, 2016 in the amount ranging from $15,145.80 to $24,914.80. The bid was addressed to “Mr.-s Chad Reed.”
On March 31, 2016, Chad Reed responded to the bid via electronic
Mail. Chad Reed stated that he wanted a bid in the range of $17,787 to $20,858.
On April 19, 2016, Dave Brandenburg responded to the email and stated, “Hi
Chad – Once Ross is paid in full, a little premature, but your bank will be $12,899.04 including Strell to apply to the range you listed below.”
Dave Brandenburg passed away in November of 2016.
On or about November 16, 2016, Keep’n It Blue filed a complaint against
Brandenburg Pool with the Registrar for non-payment on a home remodeling contract. Keep’n It Blue stated in its complaint, “Contractor was to perform a remodel based on credit that was incurred during business relationship. Remodel was not done due to contractor’s business shutting down due to sudden death.”
9. On November 28, 2016, the Registrar of Contractors, (hereinafter, “Registrar”), issued a Citation for an alleged violation of A.R.S. § 32-1154(A)(10). Heidi Brandenburg, Dave Brandenburg’s sister in law, filed a timely written answer to the Citation, stating that Dave Brandenburg passed on November 7, 2016 and that his company was insolvent. She wrote that she was unsure about the credit totaling approximately $15,000.
10. The Registrar referred the matter to the Office of Administrative Hearings, an
independent agency, to schedule an evidentiary hearing. A hearing was held on February 1, 2017.
11. No one appeared on behalf of Brandenburg Pool. No one filed a request to appear telephonically on behalf of Brandenburg Pool. Although the hearing did not start until approximately 10:20 a.m. no one appeared on behalf of Brandenburg Pool through an authorized member, officer, employee, or attorney, or contact the OAH to request that the start of the hearing be further delayed. Consequently, Brandenburg Pool did not present any evidence to defend its license.
12. At hearing, Keep’n It Blue contended that it had incurred a credit in the amount of $15,099.04 for the referrals it made to Brandenburg Pool. However, it is undisputed that Brandenburg Pool agreed that it would remodel Chad Reed’s swimming pool in exchange for Keep’n It Blue’s referral services.
CONCLUSIONS OF LAW
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. See A.A.C. R2-19-119.
A preponderance of the evidence is “such proof as convinces the trier of fact that the contention is more probably true than not.” Morris K. Udall, Arizona Law of Evidence § 5 (1960).
A.R.S. § 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 seven hundred fifty dollars when due for materials or services rendered in connection with the licensee's operations as a contractor when the licensee has the capacity to pay or, if the licensee lacks the capacity to pay, when the licensee has received sufficient monies as payment for the particular construction work project or operation for which the services or materials were rendered or purchased.
Keep’n It Blue did not establish that Brandenburg Pool agreed to pay it monies for services rendered. Chad Reed and his wife testified that Brandenburg Pool agreed to remodel their pool in exchange for Keep’n It Blue’s referral services. Brandenburg Pool did not agree to pay Keep’n It Blue money for services.
Even if Brandenburg had agreed to pay monies to Keep’n It Blue, the preponderance of the evidence did not show that monies were “due”. It was undisputed that Keep’n It Blue had earned a credit in the amount of $15,099.04. However, Chad Reed agreed to a pool remodeling project that was at least $17,787.
Therefore, the preponderance of the evidence does not show that Brandenburg Pool Repair & Remodeling Inc. DBA: Brandenburg Outdoor violated Ariz. Rev. Stat section 32-1154(A)(10) as alleged.
RECOMMENDed order
Based on the foregoing, it is recommended that the Registrar close the Complaint in Case No. 2016-4578.
In the event of certification of this 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 the certification.
Done this day, February 21, 2017.
/s/ Velva Moses-Thompson
Administrative Law Judge
Transmitted electronically to:
Jeffrey Fleetham, Director
Registrar of Contractors