ALJDEC decisions subject to certification as final

2017A-4896-NPC-ROC · Registrar of Contractors · 2018-01-11

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

D L M Excavation & Construction Inc.,

COMPLAINANT ,

v.

Apex Pools of Arizona LLC ,

License No. B-5.309745-R,

RESPONDENT.

No. 2017A-4896-NPC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: January 11, 2018, at 8:30 a.m.

APPEARANCES: D L M Excavation & Construction Inc. (“Complainant”) failed to appear; Apex Pools of Arizona LLC (“Respondent”) appeared through Mark Robert Araiza, Sr., its qualifying party/member.

ADMINISTRATIVE LAW JUDGE: Diane Mihalsky

_____________________________________________________________________

FINDINGS OF FACT

The Arizona Registrar of Contractors (“the Registrar”) issued License Nos. R-2.173102-R and A.256545-C to Complainant. Complainant’s address of record is 7808 N. 6th St., Phoenix, Arizona 85020-4012.

The Registrar issued License No. B-5.309745-R to Respondent.

On September 25, 2017, Complainant filed a complaint for nonpayment with the Registrar against Respondent. The complaint alleged that Respondent owed Complainant $5,500.00 for contracting work that Complainant performed on the Wilson pool at 10410 W. Bajada Rd., Peoria, Arizona.

Complainant provided its address of record on the complaint.

On October 17, 2017, the Registrar issued a Citation for Alleged Violation of A.R.S. § 32-1154(A)(10).

Respondent filed a timely written answer to the Citation, stating that it intended to resolve Complainant’s complaint for nonpayment.

The Registrar referred the matter to the Office of Administrative Hearings (“OAH”), an independent state agency, for an evidentiary hearing. On October 23, 2017, the Registrar issued a Notice of Hearing, setting a hearing on December 13, 2017, at 10:00 a.m. at the OAH. The Registrar mailed a copy of the Notice of Hearing to Complainant at its address of record.

On December 6, 2017, Respondent filed a request to continue the hearing because it was negotiating with Respondent in an attempt to resolve the complaint. On December 12, 2017, the assigned Administrative Law Judge (“ALJ”) at OAH issued an order continuing the hearing to January 11, 2018, at 8:30 a.m. OAH staff mailed a copy of the order to Complainant at its address of record or the email address on Complainant’s motion.

Respondent’s qualifying party/member, Mark Araiza, Sr., appeared for the duly noticed hearing. After fifteen minutes, Complainant failed to appear.

The ALJ explained on the record that, unless Respondent requested otherwise, the ALJ would remand the matter to the Registrar with the recommendation that it be dismissed based on Complainant’s failure to appear at the continued hearing or to offer any proof to establish the merits of the complaint that it filed with the Registrar against Respondent.

After the ALJ stated her intention to recommend dismissal of the matter based on Complainant’s failure to appear, Mr. Araiza stated on the record that Respondent had entered into a settlement agreement with Complainant under which Respondent agreed to make payments to resolve Complainant’s complaint.

CONCLUSIONS OF LAW

This dispute lies within the Registrar’s jurisdiction to resolve.

The order setting a continued hearing at Complainant’s request that OAH staff mailed to Complainant at its address of record was reasonable. Complainant is deemed to have received notice of the continued hearing.

Complainant bears the burden of proof to establish cause to suspend or revoke Respondent’s contractor’s license by a preponderance of the evidence.

Although Complainant did not offer any evidence to establish the merits of the complaint that it filed with the Registrar, Mr. Araiza candidly acknowledged that Respondent had failed to paid Complainant in violation of A.R.S. § 32-1154(A)(10), but that Complainant had agreed to accept payments in a settlement agreement.

RECOMMENDED ORDER

Based on the foregoing, on the effective date of the final order in this matter, Complainant D L M Excavation & Construction Inc.’s complaint in Case No. 2017-4896 against Respondent Apex Pools of Arizona LLC’s License No. B-5.309745-R shall be dismissed, without prejudice to Complainant’s right to request that the Registrar reopen the complaint if Respondent fails to perform the settlement agreement.

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, January 11, 2018

Diane Mihalsky

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors