ALJDEC decisions subject to certification as final

2018A-3602-NPC-ROC · Registrar of Contractors · 2019-01-30

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: January 15, 2019. APPEARANCES: Complainant Pima Pools & Plastering was represented by Javier Alatorre. Respondent Imperial Pools And Design LLC was represented by Jay Graif. ADMINISTRATIVE LAW JUDGE: Tammy L. Eigenheer _____________________________________________________________________ FINDINGS OF FACT 1. Imperial Pools And Design LLC (Respondent) is the holder of License No. 316814 issued by the Registrar of Contractors (Registrar). 2. On or about August 6, 2018, Pima Pools & Plastering (Complainant) filed a Non-Payment Complaint Form regarding Respondent with the Registrar alleging that Respondent had failed to pay Complainant the principal amount of $7,680.40 for work performed. 3. The parties were unable to resolve their differences, and Complainant requested an administrative hearing. The Registrar then issued a Citation for an alleged violation of A.R.S. § 32-1154(A)(10). 4. On or about January 30, 2019, the Registrar issued a Notice of Hearing in which the parties were notified that a hearing upon the charges made in the Citation and Complaint would be held by the Office of Administrative Hearings. 5. At the time of the hearing in this matter, the parties were in agreement that Respondent had delivered to Complainant a cashiers check in the amount of $7680.40 on the morning of the hearing. Respondent requested that the matter be vacated on the basis of the payment having been made. Complainant argued the matter should proceed to hearing. 6. Complainant argued that the cashiers check, while covering the principal amount due, did not include any interest, fees, or costs incurred by Complainant. Complainant asserted that the provisions of A.R.S. § 32-1129.02 allowed Complainant to recover interest and fees on delayed payments, and the hearing should proceed to determine additional monies owed by Respondent. 7. Respondent argued that the payment of the principal amount due had been paid and, therefore, the complaint in this matter should be closed. Respondent also noted that the Citation issued by the Registrar cited a possible violation of A.R.S. § 32-1154(A)(10), which does not allow for the collection of interest, fees, or costs. Respondent further asserted that A.R.S. § 32-1129.02(I) requires a complaining party to post a surety bond or cash deposit of $500.00 or one-half of the amount due, whichever is less and Complainant did not post such bond or cash deposit. Thus, the complaint should not be expanded to include a claim under A.R.S. § 32-1129.02. CONCLUSIONS OF LAW 1. 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. 2. 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). 3. 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.

4. The evidence established that Respondent paid to Complainant the principal amount due of $7,680.40 prior to the hearing. 5. As previously detailed the Citation in this matter alleged a violation of A.R.S. § 32-1154(A)(10) and the Notice of Hearing provided a hearing would be held upon the charges made in the Citation and Complaint. As that alleged violation was cured prior to the hearing, no pending issue in the Notice of Hearing remains to be determined by the Administrative Law Judge. Therefore, this matter should be dismissed and the complaint closed. RECOMMENDed order It is recommended that on the effective date of the Registrar’s final order in this matter, the Registrar close Complainant Pima Pools & Plastering’s complaint in Case No. 2018-3602 against Respondent Imperial Pools And Design LLC’s License No. 316814. 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, January 30, 2019.

/s/ Tammy L. Eigenheer Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director Registrar of Contractors -----------------------

Office of Administrative Hearings 1740 West Adams Street, Lower Level Phoenix, Arizona 85007 (602) 542-9826