ALJDEC decisions subject to certification as final

06F-L0025-ROC-RHG · Registrar of Contractors · 2009-02-04

STATE OF ARIZONA IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: January 20, 2009 APPEARANCES: Complainants: Brandy and Gregory Cummins appeared and were represented by counsel, T’Shura – Ann Elias. Respondent: Respondent failed to appear either through authorized representative or counsel. Registrar of Contractors: Cliff Corlett, inspector, and Don Herman, investigator, appeared on behalf of the Registrar of Contractors. ADMINISTRATIVE LAW JUDGE: Brian E. Smith _____________________________________________________________________ Evidence and testimony were presented and, based on the entire record in this matter, the following Findings of Fact, Conclusions of Law and Recommended Order are made:

FINDINGS OF FACT 1. This matter convened for rehearing at the time, date and place set forth in the Registrar of Contractors’ Notice of Rehearing dated December 16, 2008.[1] 2. Complainants Gregory and Brandy Cummins (“Complainants”) are the owners of a residence located at 3500 N. El Dorado Avenue, Lake Havasu City, Arizona (“premises/project”). 3. Respondent Artistic Pools Decks and Falls Inc. (“Respondent”) is a corporation which holds Arizona Contractor’s License No. 179417, Class B- (Residential General Swimming Pool) issued by the Registrar of Contractors (“ROC/Registrar”) on October 21, 2002. James Earl McNamara (“McNamara”) is a corporate officer and the qualifying party for the license. A review of the licensing database maintained by the ROC indicates that this license was suspended April 16 -20 2004 (L03-0193); suspended November 1 -12, 2004 (renewal); suspended April 26, 2005 through May 10, 2005 (L04-0304); placed on probation from April 25, 2005 through April 26, 2006 (L04-0304) and revoked January 22, 2008 (L07-0456). 4. Complainants filed a complaint with the ROC on July 21, 2005 wherein they alleged various problems with a pool constructed by Respondent including, inter alia, that the subject pool had not been completed per contract, the pool deck needed repair, wall stains required removal, jets were not flush in the spa, tile spot required repair and the “Navigator” pool cleaner was missing. (Exhibit C-44) 5. Registrar of Contractors Inspector Cliff Corlett (“Corlett”) conducted a jobsite inspection on August 1, 2005 and issued a Corrective Work Order on August 2, 2005 (Exhibit C-43) which required Respondent to perform corrective work on items 2, 3, 4, 5, 7, 8, 10, 11 and 12. 6. On August 18, 2006, the Registrar issued a Citation and Complaint in Case No. L05-0025 charging Respondent with possible violations of A.R.S. §32-1154(A) (7), (10), (18), (23), (13) (namely, A.R.S. §32-1134(B)) and (3) (namely, A.A.C. R4-9-108). 7. Respondent filed an answer with the Registrar of Contractors on August 31, 2005 wherein it denied it was the licensed contractor on the project and asserted it had no contract with Complainants and that the permit for the project was obtained by another contractor, Edgewater Pools. 8. At the hearing, Complainant Brandy Cummins (B. Cummins) credibly testified and submitted Exhibits C-6, C-9, C-34, C-43, C-44, C-47, C-54, C- 62, C-64 and C-71 which were marked, admitted and considered. 9. Respondent failed to appear either through authorized representative or counsel. 10. Inspector Corlett testified on behalf of the Registrar and described his observations and conclusions on his initial jobsite inspection, several other jobsite inspections regarding this matter and another complaint in Case No. L07-0571 (Exhibit C-9) filed by Complainants against Respondent and a pre-hearing jobsite inspection on January 20, 2009. 11. Inspector Corlett conducted a jobsite inspection in Case No. L07- 0571 on July 9, 2007 and issued a Corrective Work Order relative thereto on July 12, 2007 (Exhibit C-6) which required Respondent to perform corrective work on four (4) of the eight (8) listed complaint items, i.e., 1, 4, 5 and 7. Corlett further testified that certain of the items in the Case No. L07- 0571 were similar to those in this matter (i.e., CWO 1 items 3 and 12 were the same as CWO2 items 7 and 1, respectively); the others were additional items.[2] 12. Investigator Donald E. Herman (“Herman”) also testified on behalf of the Registrar. Herman related that, based upon his investigation of the facts surrounding Complainants’ dealings with Respondent, one Richard Traub (“Traub”) was the authorized representative of Respondent who contracted with Complainants to construct the subject pool. 13. Sometime in January 2005 B. Cummins contacted McNamara in response to Respondent’s advertisement for the purpose of retaining Respondent to construct a pool. 14. On or about January 15, 2005, Complainants and Respondent entered into a Construction Agreement for the construction of a pool and related amenities at Complainants’ residence for a total price of $30,500.00. (Exhibit C-71) 15. On or about March 19 and April 15, 2005, Complainants paid Respondent $15,000.00 and $10,000.00, respectively, through Traub. Subsequently, on June 6, 2005, B. Cummins paid Traub $2,500.00 cash toward the contract price. (Exhibits C-62 and C-64) 16. On or about July 16, 2005, McNamara telephoned B. Cummins and directed her to be present at the site that morning for the plastering of the pool. That day, at McNamara’s direction, Complainants paid $1,850.00 cash to Shawn Michael Lussier of Custom Pool Plastering[3] the company reportedly retained by Respondent to perform the plastering on the pool. (Exhibit C-47) 17. On the basis of representations by Complainants, and the testimony and evidence elicited at the hearing, all items delineated in the CWO 1 remain incomplete with the exception of the items 6 (Navigator pool cleaner) and 1 and 9 (no action required).

APPLICABLE LAW The Citation and Complaint issued by the Registrar of Contractors charged Respondent with possible violations of A.R.S. §32-1154(A) (7), (10), 13 (specifically A.R.S. §32-1124(B)), (18), (23) and (3) (namely R4-9- 108). Those statutory sections require that the holder of a license or person listed on the license shall not commit the following:

7. The doing of a wrongful or fraudulent act by the licensee as a contractor resulting in another person being substantially injured.

10. Aiding or abetting an unlicensed person to evade the provisions of this chapter, knowingly combining or conspiring with an unlicensed person or acting as allowing one’s license to be used by an unlicensed person or acting as agent, partner, associate or otherwise of an unlicensed person with intent to evade provisions of this chapter.

… 13. Failure in any material respect to comply with the provisions of this chapter. …

18. Contracting or offering to contract or submitting a bid while the license is under suspension or while the license is on inactive status.

…

23. Failure to take appropriate corrective action to comply with this chapter or with rules adopted pursuant to this chapter without valid justification within a reasonable period of time after receiving written directive from the registrar. The written directive shall set forth the time within which the contractor is to complete the remedial action. The time permitted for compliance shall not be less than fifteen days from the date of issuance of the directive. A license shall not be revoked or suspended nor shall any other penalty be imposed for violation of this paragraph until after a hearing has been held pursuant to the provisions of this article. … 3. Violation of any rule adopted by the Registrar.

A.R.S. §32-1124(B) is named as the statute violation charged pursuant to A.R.S. §32-1154A (13). That statute provides that every license and/or renewal must be signed by the Registrar or the Registrar’s designated representative and the licensee. It further provides that every license number must be preceded by the acronym “ROC” and be posted in a conspicuous place on premises where any work is being performed, on all written bids submitted by the licensee and on all advertising, letterheads and other documents used by the licensee in the conduct of business. A.C.C. R4-9-108 is named as the rule violation charged pursuant to A.R.S. §32-1154A (3). Rule R4-9-108 provides that all work shall be done in a professional and workmanlike manner and in accordance with any applicable building codes and professional industry standards. … … …

CONCLUSIONS OF LAW 1. The Registrar of Contractors has jurisdiction over this matter pursuant to A.R.S. § 32-1101, et. seq., which authorizes the Registrar to impose disciplinary sanctions against licenses for violations of A.R.S. § 32-1154. 2. To warrant such sanctions by the Registrar, Complainants must demonstrate by a preponderance of the evidence that Respondent violated any one, or more, of the statutory sections cited. Proof by a “preponderance” means that “the evidence is sufficient to persuade the finder of fact that the proposition is more likely true than not.” In re Arnold and Baker Farms, 177 B.R. 648 (9th Cir. BAP (Ariz.) 1994). See also, Culpepper v. State of Arizona, 187 Ariz. 43, 930 P.2d 508 (App. 1996). It is “evidence which is of greater weight or more convincing than the evidence which is offered in opposition to it; that is, evidence which as a whole shows that the fact sought to be proved is more probable than not.” Black’s Law Dictionary 1182 (Rev. 6th ed. 1990). 3. This tribunal determines and concludes that Complainants established by a preponderance of credible, probative and relevant evidence that Respondent violated A.R.S. §32-1154A (23) by failing to take appropriate corrective action without valid justification within a reasonable period of time after receiving a written directive from the Registrar of Contractors on Items 2, 3, 4, 5, 7, 8, 10, 11 and 12 in the Corrective Work Order dated August 2, 2005. 4. This tribunal further determines and concludes that Complainants established by a preponderance of credible, probative and relevant evidence that Respondent violated A.R.S. §32-1154A (3) and A.A.C. R4-9-108, the workmanship rule, as it pertains to Items 2, 3, 4, 5, 7, 8, 10, 11 and 12 in the Corrective Work Order. 5. This tribunal further determines and concludes that the violations set forth in Conclusions of Law 3 and 4 above were wrongful and resulted in substantial injury to Complainants. Therefore, violations of A.R.S. §32-1154A (7) have been proven as cited. 6. It is further determined and concluded that Complainants failed to establish by a preponderance of credible, probative and relevant evidence that Respondent violated A.R.S. §32-1154A (10), (18) and (13). 7. This tribunal further determines and concludes that Respondent’s prior revocation in Case No. L07-0456 and disciplinary suspensions in Case Nos. L03-0193 and L04-0304 shall serve as factors in aggravation in this matter. In addition, the fact that Respondent’s actions herein occurred during the period of probation imposed in Case No. L04-0304 shall also serve as a factor in aggravation in this matter. 8. This tribunal further determines and concludes that the weight of credible, probative and relevant evidence established that Respondent failed to act in good faith during and subsequent to the construction of the pool as well as in response to the Registrar of Contractors Inspector’s Corrective Work Order. Such absence of good faith is further demonstrated by Respondent’s failure to appear at the hearing in this matter without legal or reasonable excuse.

RECOMMENDED ORDER On the basis of the foregoing, IT IS RECOMMENDED that, commencing on the effective date of the Registrar’s Order entered in this matter, the Class B-05 license of Respondent be revoked.[4] Done this day, February 4, 2009.

_________________________ Brian E. Smith Administrative Law Judge

Original transmitted by mail this ____ day of ____________, 2009, to:

Registrar of Contractors Armando Contreras 3838 N. Central Ave. Phoenix, AZ 85012

By ___________________________ ----------------------- [1] This matter originally convened for hearing December 13, 2005 at which time Respondent failed to appear. After hearing, this tribunal issued its Administrative Law Judge Decision and Order December 29, 2005 whereby it was recommended that Respondent’s license be revoked. The ROC adopted, with modifications, the recommended Decision and Order on February 2, 2006. After the Registrar adopted this tribunal’s recommended denial of Respondent’s petition for rehearing based on a reported erroneous calendaring of the original hearing date, Respondent’s appeal to the Superior Court was granted and the matter was remanded for rehearing pursuant to that Court’s October 10, 2007 Ruling. [2] A hearing in Case No. L07-0571 took place on September 4, 2008 before Administrative Law Judge Douglas which resulted in a September 8, 2008 Decision and Order wherein the revocation of Respondent’s license was recommended. Subsequently, on December 22, 2008, Complainants filed herewith a Motion for Summary Judgment/Motion to Vacate Hearing (“motion”) wherein they asserted that summary judgment is appropriate in this matter as “no genuine issue of material fact that there is a final judgment on the merits that conclusively determined that…violations of A.R.S. §32-1154(A) (3), (7) and (23) and Rule 4-9-108 of the Arizona Administrative Code” have been proven at the hearing held September 4, 2008 in Case No. L07-0571. In addition, Complainants contend that that since granting of the foregoing motion for summary judgment is proper, the January 20, 2009 hearing should be vacated.” Respondent failed to timely submit a written response to the motions. By Order dated January 14, 2009, this tribunal denied Complainants’ motions due to its inability to fully determine from the content thereof whether the doctrines of res judicata and collateral estoppel should apply to this matter based on ALJ Douglas’ decision.

[3] A review of the Registrar of Contractors’ database shows License No. 182625 to be held by Custom Pool Plastering of AZ with Kenneth A. Waren the qualifying party. No License number 51162 exists. [4] 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 in this matter will be forty (40) days from the date of that certification.

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