ALJDEC

99F-1782-ROC · Registrar of Contractors · 1999-10-07

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: October 8, 1999 APPEARANCES: Complainant : Dave Hood, Swimming Pool Service and Repair Superintendent; Bob Lloyd, Employee. Respondent : Distinctive Backyard Concepts failed to appear either in person or by authorized representative. ADMINISTRATIVE LAW JUDGE: Gary B. Strickland _____________________________________________________________________ Evidence and testimony having been received at the hearing and based upon the entire record, the undersigned Administrative Law Judge issues the following Findings of Fact, Conclusions of Law and Recommended Order.

FINDINGS OF FACT

1. Due and proper notice of the hearing was mailed to each party of record. Respondent failed to appear at the hearing, although the hearing was delayed for a period of 20 minutes to accommodate a late arrival. 2. Respondent is an Arizona Corporation holding a Class C- 31(Masonry) license through the Registrar of Contractors. Complainant is a licensed general swimming pool contractor. 3. On or about September 29, 1999, Complainant’s Superintendent, Dave Hood, met with Respondent’s President, Matthew Berault, during which meeting Mr. Hood provided a quote for the renovation of a swimming pool. The estimate was accepted by Respondent’s representative/employee/agent on October 2, 1997. Work commenced on October 8, 1997 and the job was completed on June 9, 1998. On October 14, 1997, Respondent paid $2,383.00 to Complainant as a down payment on and as consideration for the agreement. 4. The evidence is uncontroverted that Respondent has failed to pay fully the value of the work performed by Complainant on this job. 5. The evidence is further uncontroverted that Respondent owes Complainant the sum of $2,977.00 as the fair value of the work performed. 6. There is no evidence of record that suggests that Complainant failed properly to perform as agreed or that Complainant has breached its obligations under its agreement with Respondent . 7. The evidence establishes that Respondent has withheld payment from Complainant for unsubstatiated and unjustifiable reasons.

CONCLUSIONS OF LAW

1. The Office of Administrative Hearings has jurisdiction over the subject matter and the parties hereto pursuant to A.R.S ( 41-1092. 2. The burden of proof generally at an administrative hearing falls to the Complainant. Culpepper v. Arizona Board of Nursing, 187 Ariz. 431, 930 P.2d 508 (App. 1997). Further, the standard of proof is that of the “preponderance of the evidence”. Smith v. Arizona Department of Transportation, 146 Ariz. 430, 706 P.2d 756 (App. 1985). 3. The weight and sufficiency of the record establishes, by a preponderance of the evidence, that Respondent has failed to pay that which Respondent owes to Complainant for labor and materials supplied by Complainant in accordance with the agreement. The evidence further has established that Respondent owes a balance on the agreement totaling $2,977.00, in violation of A.R.S ( 32-1154 (A) (11). 4. The weight and sufficiency of the evidence further establishes that Respondent’s failure to pay the sum due and owing constitutes a wrongful act in violation of A.R.S ( 32-1154 (A) (7).

RECOMMENDED ORDER

In view of the foregoing, it is recommended that Respondent’s Class C- license be suspended commencing the effective date of the Registrar’s order until the Registrar of Contractors receives credible written proof that Respondent has paid or tendered the sum of $2,977.00 to Complainant. It is further recommended that should Respondent pay or tender the identified sum due and owing on or before the effective date of the Registrar’s Order, the recommended indefinite license suspension not take place. Set forth this 8th day of October 1999.

______________________________________ Gary B. Strickland Administrative Law Judge

Original transmitted by mail this ____ day of ____________, 1999, to:

Registrar of Contractors Mr. Michael P. Goldwater ATTN: Joyce Armijo 800 West Washington, 6th Floor Phoenix, AZ 85007

By ___________________________

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Office of Administrative Hearings 1400 West Washington, Suite 101 Phoenix, Arizona 85007 (602) 542-9826