ALJDEC
99F-P0276-ROC · Registrar of Contractors · 1999-10-12
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
|ALPINE CONSTRUCTION AND |§| | |DEVELOPMENT, |§|CASE NO.: P99-0276 | |Complainant, |§|M00-0085 | | |§| | |-v- |§|DOCKET NO.: 99F-P0276-ROC | | |§|99F-M0085-ROC | |License No. 138784, Class B- of |§| | |ALPINE DEVELOPMENT OF ARIZONA |§| | |L.L.C. (LLC), |§| | |Respondent. |§| | | |§| | |and |§|RECOMMENDED | | |§|DECISION AND ORDER | |alpine development of arizona, |§| | |Complainant, |§| | | |§| | |-v- |§| | | |§| | |License No. 143304, Class B- of |§| | |ALPINE CONSTRUCTION AND |§| | |DEVELOPMENT (llc), |§| | |Respondent, |§| | | |§| | | |§| | | |§| |
HEARING: September 27, 1999, at 2:00 p.m. APPEARANCES: Alpine Construction and Development (LLC) appeared through its qualifying party and authorized representative, Dan Sherwood. Alpine Development of Arizona L.L.C., appeared through its attorney, Daniel Gruender. ADMINISTRATIVE LAW JUDGE: M. Douglas
These matters came on for consolidated hearing on September 27, 1999. Alpine Construction and Development appeared through its qualifying party, Dan Sherwood, and Alpine Development of Arizona L.L.C. appeared through its attorney, Daniel Gruender. Evidence and testimony were presented and, based upon the entire record, the following Findings of Fact, Conclusions of Law and Recommended Order are made: FINDINGS OF FACT
1. Alpine Development of Arizona, L.L.C. (LLC) (hereinafter referred to as “Alpine Development”) is the holder of a Class B- License issued by the Registrar of Contractors.
2. Alpine Construction and Development, L.L.C., (hereinafter referred to as “Alpine Construction”) is the holder of a Class B- License issued by the Registrar of Contractors.
3. Alpine Construction filed a complaint against Alpine Development alleging that the entity was using Alpine Construction’s “trade name” causing confusion, resulting in Alpine Construction receiving telephone calls, bills, faxes, UPS, etc., that were intended for Alpine Development.
4. Alpine Development then filed a complaint against Alpine Construction alleging that the entity had “knowingly” filed false information in its complaint against Alpine Development.
5. The two entities are both general residential contractors and are competitors for construction work in northern Arizona.
6. There was no dispute that Alpine Construction had obtained its Class B- License before Alpine Development obtained its Class B- License.
7. Credible evidence, presented at hearing, established that Alpine Construction had received one employment verification request regarding an employment that had listed Alpine Construction as a prior employer when in fact the employee had not worked there. However, there was no credible evidence presented to establish that the individual had worked for Alpine Development and credible evidence, presented at hearing, established that the credit company made its inquiry to Alpine Construction not out of confusion but because the individual had specifically listed it as a prior employer.
8. Credible evidence established that Alpine Construction had received a DATS delivery intended for Alpine Development.
9. Credible evidence, produced at hearing, established that DATS (a delivery service) was confused by the two identities’ names and did attempt to deliver the material to the wrong entity. Credible evidence also established that the mistake was quickly rectified and that no apparent damage was done to either party.
10. Credible evidence established that the attempted misdirected delivery by DATS was caused by carelessness by DATS’ employees rather than by any actual confusion between Alpine Construction and Alpine Development.
11. Credible evidence, produced at hearing, established that Alpine Construction had received an unspecified number of telephone calls and possibly a few faxes intended for Alpine Development.
12. Credible evidence established that Alpine Development has not received any telephone calls, faxes, or anything else intended for Alpine Construction.
13. The term “Alpine” was shown to be a geographic term commonly utilized for numerous entities throughout Northern Arizona. A review of agency records establishes that the term “Alpine” is utilized in 26 separate licenses issued by the Registrar of Contractors.
14. Alpine Development was not shown to have been intentionally or unfairly trading upon the name of Alpine Construction nor to have acted in any way in bad faith.
15. There was no credible evidence that any member of the public at large had ever confused the two different entities and attempted to retain one entity when the individual meant to retain the alternative entity.
16. Both entities were shown to have emphasized the first two words in the respective names. However the terms “Alpine Construction” and “Alpine Development” were not shown to be confusing.
17. The full names of the parties, Alpine Construction and Development (LLC) and Alpine Development of Arizona L.L.C. (LLC), were shown to be obviously similar. However, there was no credible evidence that the similarity between the two names had caused any confusion to the general public and credible evidence established that any confusion that had been caused in the contracting community had been minimal.
18. Credible evidence established that Alpine Development had checked with the Arizona Corporation Commission and the Registrar of Contractors and been given the opportunity to utilize the name “Alpine Development of Arizona L.L.C. (LLC)” by both state agencies.
19. There was no credible evidence that Alpine Construction filed its complaint against Alpine Development out of bad faith or with any intent to harm Alpine Development.
20. Credible evidence established that Alpine Construction utilized the name “UPS” in its complaint against Alpine Development when in fact UPS was never involved with any misdirected shipment. The use of the name “UPS” rather than the name “DATS” for an allegation of a misdirected shipment of supplies is found to be de minimums and not to constitute a wrongful or fraudulent act.
CONCLUSIONS OF LAW
1. The credible evidence of record does not support any finding that Alpine Development has violated the charged provisions of A.R.S. §32- 1154(A).
2. The credible evidence of record does not support any finding that Alpine Construction has violated the charged provisions of A.R.S. §32- 1154(A).
RECOMMENDED ORDERS
1. In view of the foregoing, it is recommended that Citation No. P99- 0276, together with the complaint upon which it is based, be dismissed.
2. In view of the foregoing, it is recommended that Citation No.M00-0085, together with the complaint upon which it is based, be dismissed.
Dated this 12th day of October, 1999.
OFFICE OF ADMINISTRATIVE HEARINGS
_________________________________ M. DOUGLAS Administrative Law Judge
Original mailed this day of October, 1999 to:
Michael P. Goldwater, Director Attn: Joyce Armijo Registrar of Contractors 800 W. Washington, 6th Floor Phoenix, AZ 85007
Transmitted by:
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