ALJDEC

99F-P0277-ROC · Registrar of Contractors · 1999-10-12

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

|ALPINE CONSTRUCTION AND |§|CASE NO.: P99-0277 | |DEVELOPMENT, |§| | | |§|DOCKET NO.: 99F-T0277-ROC | |Complainant, |§| | | |§| | |-v- |§| | | |§|RECOMMENDED | |License No. 096794, Class C-02 of|§|DECISION AND ORDER | |ALPINE EXCAVATION AND |§| | |CONSTRUCTION CO. (PTR), |§| | | |§| | |Respondent. |§| | | |§| |

HEARING: September 27, 1999, at 2:00 p.m. APPEARANCES: The Complainant appeared through its authorized representative and qualifying party, Dan Sherwood. The Respondent appeared through its authorized representative and qualifying party, Wayne Reidhead. ADMINISTRATIVE LAW JUDGE: M. Douglas

This matter came on for consolidated hearing with two additional matters on September 27, 1999. The Complainant appeared through its authorized representative, Dan Sherwood, and the Respondent appeared through its authorized representative, Wayne Reidhead. 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. The Respondent is the holder of a Class C-02 License issued by the Registrar of Contractors.

2. The complaint in this matter alleges that the Respondent is using the Complainant’s “trade name” and that the Complainant has received mailers, faxes, calls, employment verification (requests), UPS shipments, bills, etc., that should have gone to the Respondent. The Complainant requests that the Respondent be required to change its name as the Complainant’s license was issued before the Respondent’s license.

3. The Complainant holds a Class B- (general residential contractor) and the Respondent’s Class C-02 License is limited to excavating, grading and oil surfacing.

4. Both entities were shown to emphasize the first two words of their respective names. The Respondent was shown to commonly identify itself as “Alpine Excavation.”

5. Credible evidence, produced at hearing, established that the word “Alpine” is a geographic term that is used repeatedly for business names throughout Northeast Arizona. The word “Alpine” is not found to constitute any type of “trade name” that the Complainant has the right of sole usage.

6. Credible evidence, presented at hearing, established that the Respondent has never received any mailers, employment verification requests, UPS shipments, or any other materials intended for the Complainant.

7. Credible evidence, presented at hearing, established that, in the last two years, the Complainant has received two mailers intended for the Respondent.

8. There was no credible evidence of any confusion or misidentification of the two entities by the general public or the contracting community as a whole.

9. The receipt of two mailers over a two year period is found to be Des Minimis.

CONCLUSIONS OF LAW

1. There was no credible evidence presented of any confusion of the two parties by the general public or the contracting community.

2. The credible evidence of record does not support any finding that the Respondent has violated the charged provisions of A.R.S. §32-1154(A).

RECOMMENDED ORDER

In view of the foregoing, it is recommended that Citation No. P99- 0277, 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

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