ALJDEC decisions subject to certification as final

2018A-996-NPC-ROC · Registrar of Contractors · 2018-05-30

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Quality One Shotcrete Inc.,

COMPLAINANT,

Mirage Pools & Spas Inc.,

License No. 156814,

RESPONDENT.

No. 2018A-996-NPC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: May 30, 2018, at 1:00 p.m.

APPEARANCES: Quality One Shotcrete Inc. (“Complainant”) appeared through its qualifying party/officer, Diana Cummard; Mirage Pools & Spas Inc. (“Respondent”) failed to appear.

ADMINISTRATIVE LAW JUDGE: Diane Mihalsky

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FINDINGS OF FACT

On or about July 30, 2000, the Arizona Registrar of Contractors (“the Registrar”) issued License No. B-5.156814-R for residential general swimming pool contracting to Respondent. Respondent’s address of record is 5616 E. McKellips Rd., Ste. 103, Mesa, Arizona 85215-2763.

On or about January 26, 2006, the Registrar issued License Nos. R-9.252404-R and CR-5.252405-D to Complainant.

On or about March 2, 2018, Complainant filed a complaint with the Registrar alleging that Respondent had subcontracted to Complainant construction of shotcrete for a pool that Respondent was building at the Corbin residence at 3116 E. Maplewood, Gilbert, Arizona (“the project”). Although Complainant had performed the subcontract on November 14, 2017, Respondent had not paid it for the $5,835.00 amount of the subcontract or any late fees.

On March 16, 2018, the Registrar issued a Citation for Alleged Violation of A.R.S. § 32-1154(A)(10) against Respondent’s contractor’s license.

Respondent filed a timely written answer to the Citation by email, acknowledging that it had subcontracted shotcrete for the project to Complainant and that it had not paid anything to Complainant for its work pursuant to the subcontract, but affirmatively alleging that Complainant’s work on the project was poor and that it had paid others to correct Complainant’s poor work.

The Registrar referred the matter to the Office of Administrative Hearings (“OAH”), an independent state agency, for an evidentiary hearing.

On April 12, 2018, the Registrar issued a Notice of Hearing, setting a hearing on May 30, 2018, at 1:00 p.m. at OAH. The Registrar mailed a copy of the Notice of Hearing to Respondent to the email address on its written answer and by first-class mail to its address of record.

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 forty-six minutes to allow Respondent additional travel time, Respondent did not appear, through an authorized officer, employee, or attorney, and did not contact OAH to request that the start of the hearing be further delayed. Consequently, Respondent did not present any evidence to defend its license.

Complainant’s qualifying party/officer, Ms. Cummard, appeared and testified credibly that Respondent subcontracted the project to Complainant, Complainant performed the project pursuant to the subcontract, and Respondent failed to pay anything to Complainant for the project. Complainant submitted its Invoice No. dated November 16, 2016, in the amount of $5,835.00 for the project, plus $266.54 in late fees, for a total of $6,101.54..

Pursuant to A.A.C. R4-9-117, administrative notice is taken of Respondent’s license history as shown on the Registrar’s public website. On this date, Respondent’s license is current and in good standing. Respondent’s license was disciplined as a result of one complaint.

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CONCLUSIONS OF LAW

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

Because the Notice of Hearing that the Registrar mailed to Respondent’s address of record and the email address on its written answer was reasonable, Respondent is deemed to have received notice of the hearing.

Complainant bears the burden to establish cause to revoke or suspend Respondent’s contractor’s license by a preponderance of the evidence. Respondent bears the burden to establish affirmative defenses by the same evidentiary standard.

“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 failed to pay $5,835.00 for Complainant’s work under its subcontract with Respondent for shotcrete at the pool at the Corbin residence. Respondent did not establish the affirmative defense alleged in its written answer that that Complainant’s work was deficient or that Respondent incurred costs to repair the work that should be offset against monies that otherwise Respondent would have owed to Complainant. Therefore, Complainant established cause to revoke or suspend Respondent’s contractor’s license under A.R.S. § 32-1154(A)(10).

Because A.R.S. § 32-1154(A)(10) only includes a licensee’s failure to pay for materials or services rendered in connection with the licensee’s operations as a contractor, not late fees, interest, or other consequential or contractual damages, the Administrative Law Judge does not recommend that Respondent be required to pay late fees as a condition of keeping its contractor’s license in good standing.

RECOMMENDED ORDER

Based on the foregoing, it is recommended that thirty (30) calendar days after the effective date of the final order in this matter, Respondent Mirage Pools & Spas Inc.’s License No. B-5.156814-R shall be suspended until it has provided satisfactory written proof to the Registrar that it has paid $5,835.00 by certified or cashier’s check to Complainant Quality One Shotcrete Inc.

It is further recommended that if on or before thirty calendar days after the effective date of the final order in this matter, the Registrar has received satisfactory written proof from Respondent that it has paid Complainant $5,835.00 by certified or cashier’s check, Respondent’s license shall not be suspended and the Registrar may close Case No. 2018-996.

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, May 30, 2018

/s/ Diane Mihalsky

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors