ALJDEC decisions subject to certification as final

2017A-3713-NPC-ROC · Registrar of Contractors · 2017-10-03

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Ruiz's Pool Plastering LLC,

COMPLAINANT,

v.

Arizona Pool & Landscape Construction LLC,

License Nos. B-5.296199-R

CR21.296198-D,

RESPONDENT.

No. 2017A-3713-NPC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: October 3, 2017, at 8:30 a.m.

APPEARANCES: Ruiz’s Pool Plastering LLC (“Complainant”) appeared through Juan Angel Ruiz, its qualifying party/member; Arizona Pool & Landscape Construction LLC (“Respondent”) failed to appear; Spanish-English Interpreter Adriana Dedominids was available telephonically to provide translation..

ADMINISTRATIVE LAW JUDGE: Diane Mihalsky

_____________________________________________________________________

FINDINGS OF FACT

On or about March 24, 2005, the Arizona Registrar of Contractors (“the Registrar”) issued License No. CR36.205350-D for dual plastering to Complainant.

On or about April 16, 2015, the Registrar issued License Nos. B-5.296199-R for residential general swimming pool contracting and CR21.296198-D for dual landscaping and irrigation systems to Respondent. Respondent’s address of record with the Registrar is 515 E. Carefree Hwy., Phoenix, Arizona 85085-8839.

On or about July 20, 2017, Complainant filed a complaint with the Registrar against Respondent alleging that Respondent owed Complainant $15,750.00 for work that Complainant performed pursuant to its subcontract with Respondent on a swimming pool at the Tresa Apartment Homes, 17722 N. 79th Ave., Glendale, Arizona 85308.

On August 4, 2017, the Registrar issued a Citation For Alleged Violation of A.R.S. § 32-1154(A)(10). The Registrar mailed a copy of the Citation and Complaint to Respondent at its address of record.

On or about August 8, 2017, Respondent filed a written answer to the Citation and Complaint with the Registrar, acknowledging that it owed money to Complainant for the pool at Tresa Apartment Homes but disputing the amount.

The Registrar referred the matter to the Office of Administrative Hearings (“the OAH”), an independent agency, for an evidentiary hearing. On August 15, 2017, the Registrar issued a Notice of Hearing setting a hearing on October 3, 2017, at 8:30 a.m. in the OAH. The Registrar mailed a copy of the Notice of Hearing to Respondent at its address of record.

A hearing was held on October 3, 2017, at 8:30 a.m. Juan Angel Ruiz, Complainant’s qualifying party/member, testified and submitted two exhibits.

Respondent did not request to appear telephonically at the hearing and did not request that the hearing be continued. Although the start of the duly noticed hearing was delayed twenty-one minutes to allow Respondent additional travel time, Respondent did not appear, through an authorized member, employee, or attorney, and did not contact the OAH to request that the start of the hearing be further delayed. Consequently, Respondent did not present any evidence to defend its contractor’s license.

Mr. Ruiz testified that Respondent had not paid Complainant anything for the Tresa Apartment Homes job and that Respondent owed Complainant $15,750.00.

Mr. Ruiz testified that Respondent initially issued a check for $13,600.00 on its business account as prepayment for the job, but then stopped payment on the check. Mr. Ruiz testified that after Respondent stopped payment on the initial check, he went to the home of Respondent’s qualifying party/member, Jonathan Charnock, and that Mr. Charnock issued a personal check in the amount of $8,000.00 to Complainant. Mr. Ruiz explained that Mr. Charnock promised to pay the rest that was owed within a week, but that Mr. Charnock’s bank returned his personal check for insufficient funds. Mr. Ruiz testified that although Complainant completed its work on the subcontract, Respondent has not paid Complainant anything for the Tresa Apartment Homes job.

Pursuant to A.A.C. R4-9-117, administrative notice is taken of Respondent’s license file on the Registrar’s public website on this date. Both licenses are current and in good standing. Both licenses were suspended as discipline in an unrelated case between June 23, 2017 and July 24, 2017, until Respondent complied with the Registrar’s final order. Both licenses were administratively suspended for lack of bond between December 19, 2016 and January 11, 2017.

CONCLUSIONS OF LAW

This matter lies within the Registrar’s jurisdiction.

The Notice of Hearing that the Registrar mailed to Respondent at its address of record was reasonable and Respondent is deemed to have received notice of the hearing.

Complainant bears the burden of proof to establish cause to suspend or revoke Respondent’s licenses by a preponderance of the evidence. “A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.” A preponderance of the evidence is “[t]he greater weight of the evidence, not necessarily established by the greater number of witnesses testifying to a fact but by evidence that has the most convincing force; superior evidentiary weight that, though not sufficient to free the mind wholly from all reasonable doubt, is still sufficient to incline a fair and impartial mind to one side of the issue rather than the other.”

Complainant established that Respondent violated A.R.S. § 32-1154(A)(10) by failing to pay Complainant more than $750.00 for materials that Respondent used in its contracting business. Complainant also established that the amount that Respondent owes Complainant on the subcontract for the pool at the Tresa Apartment Homes project is $15,750.00.

RECOMMENDED ORDER

Based on the foregoing, it is recommended that on the effective date of the final order in this matter, Respondent Arizona Pool & Landscape Construction LLC’s License Nos. B-5.296199-R and CR21.296198-D shall be suspended until Respondent submits written proof that is acceptable to the Registrar that it has paid $15,750.00 to Complainant Ruiz’s Pool Plastering LLC by cashier’s or certified check.

It is further recommended that if on or before the effective date of the order, the Registrar receives satisfactory written proof from Respondent that it has paid $15,750.00 to Complainant by cashier’s or certified check, Respondent’s licenses shall not be suspended but, instead, the Complaint in Case No. 2017-3713 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 five days from the date of that certification.

Done this day, October 3, 2017

Diane Mihalsky

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors