ALJDEC - Licensing

2023A-11597-NPC-ROC · Registrar of Contractors · 2024-02-08

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Nuwaves Shotcrete Solutions, LLC,

COMPLAINANT,

v.

Bill's Pool Service, Inc.

DBA: Money's Worth Pool Construction

License No. ROC 227545,

RESPONDENT.

No. 2023A-11597-NPC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: February 5, 2024

APPEARANCES: Lisa Riggins appeared on behalf of Complainant Nuwaves Shotcrete Solutions, LLC. Respondent Bill’s Pool Service, Inc., doing business as Money’s Worth Pool Construction, failed to appear.

ADMINISTRATIVE LAW JUDGE: Sondra J. Vanella

EXHIBITS ADMITTED INTO EVIDENCE: Complainant’s Exhibits admitted; Administrative Notice taken of Agency Record

FINDINGS OF FACT

Bill’s Pool Service, Inc., doing business as Money’s Worth Pool Construction (“Respondent”), is the holder of License Number 227545 issued by the Arizona Registrar of Contractors (“Registrar”).

In October 2023, Nuwaves Shotcrete Solutions, LLC (“Complainant”) filed a Complaint against Respondent with the Registrar alleging that Respondent had failed to pay Complainant the sum of $34,495.94 for the provision and installation of shotcrete at three of Respondent’s jobsite locations.

The parties were unable to resolve their differences. The Registrar issued a Citation against Respondent for its alleged violation of A.R.S. § 32-1154(A)(10).

The matter was set for administrative hearing before the Office of Administrative Hearings on January 11, 2024, at 9:00 a.m., pursuant to the Notice of Hearing issued to the parties by the Registrar. On the date set for hearing, Complainant’s representative filed a Motion to Continue the hearing for health related reasons. The Motion was granted.

On January 12, 2024, the Tribunal issued to the parties at their respective email addresses of record, a Minute Entry Granting Continuance and Setting Hearing Via Google Meet. The Minute Entry advised the parties of the continued hearing date and time of February 5, 2024, at 9:00 a.m., and provided the correct Google Meet link for participation in the hearing either by video or phone.

On the date and at the time set for continued hearing, Complainant’s co-owner, Lisa Riggins, appeared on behalf of Complainant. Respondent failed to appear, notwithstanding proper notice. After a grace period, the matter proceeded to hearing.

Ms. Riggins testified that Respondent contracted with Complainant for Complainant to provide and install shotcrete for three projects. Ms. Riggins testified that Complainant performed the shotcrete installation for the Christy Longstreet project on June 28, 2023, and on June 29, 2023, invoiced Respondent in the amount of $20,246.38. Ms. Riggins testified that Respondent performed the shotcrete installation for the Loberg Builder/Avery project on June 27, 2023, and on June 29, 2023, Respondent invoiced Respondent in the amount of $10,724.56. On November 10, 2023, Respondent paid Complainant $3,000.00 toward the Loberg Builder/Avery project, leaving a remaining balance of $7,724.56. Ms. Riggins testified that Respondent performed shotcrete installation for the Loberg Builder/Rosen project on July 6, 2023, and on that same date, invoiced Respondent in the amount of $3,525.00.

Ms. Riggins testified that she offered Respondent the opportunity to arrange a payment plan and called, emailed, and texted Respondent approximately sixty times. Ms. Riggins further testified that Respondent is no longer open for business.

Respondent failed to appear for hearing and therefore, did not present any controverting evidence.

CONCLUSIONS OF LAW

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 this matter is 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.”

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 $750 when due for materials or services rendered in connection with the licensee's operations as a contractor unless the licensee proves that the licensee lacks the capacity to pay and has not received sufficient monies as payment for the particular construction work project or operation for which the services or materials were rendered or purchased.

The credible evidence presented at hearing established that Respondent continues to owe Complainant a total of $31,495.94 for the shotcrete installation at the three projects referenced above, taking into account the $3,000.00 paid by Respondent.

Respondent failed to appear, and as such, failed to establish by a preponderance of the evidence that it lacked the ability to pay Complainant for the services/materials provided.

Therefore, Complainant established that Respondent violated A.R.S. § 32-1154(A)(10) by failing to pay Complainant $31,495.94 for services or materials 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 Number 227545 issued by the Registrar until it has provided to the Registrar, and the Registrar has accepted, documents that establish that it has paid Complainant $31,495.94 in certified funds.

It is further recommended that when and if the Registrar receives and accepts Respondent’s evidence that it has paid Complainant $31,495.94 in certified funds, the Registrar may close the Complaint in Case Number 2023-11597.

Pursuant to A.R.S. § 41-1092.08(I), the licensee may accept the Administrative Law Judge Decision by advising the Office of Administrative Hearings in writing not more than ten (10) days after receiving the decision. If the licensee accepts the Administrative Law Judge Decision, the decision shall be certified as the final decision by the Office of Administrative Hearings.

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 forty (40) days from the date of that certification.

Done this day, February 8, 2024.

/s/ Sondra J. Vanella

Administrative Law Judge

Transmitted by either mail, e-mail, or facsimile to:

Tom Cole, Director

Registrar of Contractors

Bill's Pool Service Inc.

DBA: Money's Worth Pool Construction

[email redacted]

Nuwaves Shotcrete Solutions, LLC

[email redacted]

By: OAH Staff