ALJDEC decisions subject to certification as final

2017A-4918-NPC-ROC · Registrar of Contractors · 2017-12-21

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Sun Sparkle Pools Inc.,

COMPLAINANT,

v.

Apex Pools of Arizona LLC,

License No: 309745,

RESPONDENT.

No. 2017A-4918-NPC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: December 21, 2017

APPEARANCES: Dunia Ramirez Lopez, president of Sun Sparkle Pools, Inc. (“Complainant”) appeared on behalf of Complainant. No one appeared on behalf Apex Pools of Arizona LLC.

ADMINISTRATIVE LAW JUDGE: Suzanne Marwil

_____________________________________________________________________

FINDINGS OF FACT

Respondent is the holder of License No. 309745 issued by the Registrar of Contractors (Registrar).

Complainant filed a Complaint against Respondent with the Registrar alleging that Respondent had failed to pay Complainant the total sum of $5,603.00 for work it had done on two different residential pools in September 2017.

The parties were unable to resolve their differences, and Complainant requested an administrative hearing. The Registrar then issued a formal Citation charging Respondent with a possible violation of A.R.S. § 32-1154(A)(10).

Respondent failed to appear at the time scheduled for hearing and did not request to appear telephonically. After the expiration of a 20 minute grace period, the Administrative Law Judge conducted the hearing in Respondent’s absence.

Dunia Ramirez Lopez offered the only testimony in this matter. She indicated that in September 2017, she was contacted by Aaron Guile, a co-owner of Respondent, to provide an estimate for two residential pools at the McNamara and Wilson homes. Complainant provided the estimates and Guile agreed the price was fair. The pools were put on the schedule for the following week. Complainant completed the McNamara pool job September 7, 2017 and invoiced Respondent the amount of $3,003.00. Complainant completed the Wilson job on September 11, 2017 and invoiced Respondent the amount of $2,600.00.

Lopez testified that Complainant usually allows 14 days for payment. She recalls following up with Guile and his partner Mark Araiza and being told that payment would be forthcoming within a week. On one of the projects, Respondent asked Complainant to remove some decking stains caused by its work. Complainant did so but never received payment on the invoices.

At one point within three weeks of the performance of the work, Respondent told Complainant it was having financial difficulty, but no one at Respondent sought a payment plan so Complainant elected to file a complaint in this matter.

In its answer dated October 17, 2017 to the Complaint, Respondent via Mark Araiza, who is a co-owner with Guile, acknowledged that it owned money to various contractors and wanted to make it right. In pertinent part, the answer stated:

I will take immediate action to resolve matter successfully and promptly.

Over the last 2 months I found out our company was in financial trouble, as QP and co owner I have handled construction aspect of business/financial side. I was unaware until recently how many contractors were not paid.

I have kept in contact with each of them. My goal is to pay what is owed. I never intended for this to happen. I have worked in pool industry for almost 30 yrs. I have developed trusted relationships with our contractors, I would never intentionally drag my name and reputation thru the mud.

I cannot speak for my partner, but I have every desire to insure those owed will get paid. I have already paid out of pocket 8,000 of my personal money. I hope to one day regain the trust and confidence of both registrar of contractors and contractors themselves and prospective clients. I take pride in being an honest business man.

CONCLUSIONS OF LAW

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

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 . . . 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.

The evidence established Respondent had not made any payment toward the invoiced total of $5,603.00.

Respondent failed to establish that it lacked the ability to pay Complainant for the work performed.

Therefore, Complainant established that Respondent violated A.R.S. § 32-1154(A)(10) by failing to pay Complainant $5,603.00 for services rendered in connection with Respondent’s contracting business.

Based upon Respondent’s violation of the provisions of A.R.S. § 32-1154(A)(10), grounds exist to impose discipline against Respondent’s license.

RECOMMENDed order

Based on the foregoing, it is recommended that the Registrar suspend Respondent’s License No. 309745 issued by the Registrar until it has provided to the Registrar, and the Registrar has accepted, documents that establish that it has paid Complainant $5,603.00 in certified funds.

It is further recommended that when and if the Registrar receives and accepts Respondent’s evidence that it has paid Complainant $5,603.00 in certified funds, the Registrar may close the Complaint in Case No. 2017-4819.

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, December 21, 2017.

/s/ Suzanne Marwil

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors