ALJDEC decisions subject to certification as final

2017A-5247-NPC-ROC · Registrar of Contractors · 2018-01-08

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Steel Placers LLC,

COMPLAINANT,

v.

Apex Pools of Arizona LLC ,

License No: 309745

RESPONDENT.

No. 2017A-5247-NPC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: January 8, 2018, at 1:00 p.m.

APPEARANCES: Steel Placers LLC (“Complainant”) appeared through Shane Howell, its qualifying party/member; Apex Pools of Arizona LLC (“Respondent”) appeared through Mark Robert Araiza, Sr., its qualifying party/member.

ADMINISTRATIVE LAW JUDGE: Diane Mihalsky

_____________________________________________________________________

FINDINGS OF FACT

On or about November 19, 2005, the Arizona Registrar of Contractors (“the Registrar”) issued License No. CR70.213923-D for dual reinforcing bar and wire mesh to Complainant.

On or about November 16, 2016, the Registrar issued License No. B-5.309745-R for residential general swimming pool contracting to Respondent.

On or about October 16, 2017, Complainant filed a complaint with the Registrar alleging that Respondent had failed to pay Complainant’s invoices for four jobs in the following amounts: $937.00, $1,434.75, $882.00, and $907.25.

On October 26, 2017, the Registrar issued a Citation for Alleged Violation of A.R.S. § 32-1154(A)(10) against Respondent’s license.

Respondent’s qualifying party/member filed a timely written answer to the Citation, stating that he had talked to his partner Aaron Guiels and that Mr. Guiels was working to pay subcontractors by trying to sell equipment.

The Registrar referred the matter to the Office of Administrative Hearings, an independent agency, for an evidentiary hearing.

A continued hearing was held on January 8, 2018. Complainant’s qualifying party/member Mr. Araiza and Respondent’s qualifying party member appeared personally.

Mr. Araiza did not dispute that it owed Complainant for the invoiced amounts. Mr. Araiza testified that he only worked as Respondent’s jobsite superintendent and that his former partner, Mr. Guiels, had been responsible for keeping accounts and had disappeared. Mr. Araiza testified that although he had pulled money out of his wife’s 401K to pay other subcontractors, Respondent did not have any money to pay Complainant. Mr. Araiza did not claim that Respondent had not been paid for the jobs for which Complainant sought compensation for its work.

Pursuant to A.A.C. R4-9-117, administrative notice is taken of Respondent’s license history at the Registrar’s public website on this date. On November 24, 2017, Respondent’s license had been administratively suspended for lack of bond.

CONCLUSIONS OF LAW

This matter lies within the Registrar’s jurisdiction.

Complainant bears the burden of proof to establish cause to suspend or revoke Respondent’s contractor’s license 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.”

Complainant established that Respondent violated A.R.S. § 32-1154(A)(10) by failing to pay Complainant a total of $4,161.50 for four subcontracts.

RECOMMENDED ORDER

Based on the foregoing, it is recommended that on the effective date of the final order in this matter, Respondent Apex Pools of Arizona LLC’s License No. B-5.309745-R shall be revoked until Respondent pays $4,161.50 to Complainant Steel Placers LLC.

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 $4,161.50 to Complainant by cashier’s or certified check, the Registrar should not revoke Respondent’s license but, instead, should close the complaint in Case No. 2017-5247.

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 8, 2018.

Diane Mihalsky

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors