ALJDEC decisions subject to certification as final

07F-L0225-ROC · Registrar of Contractors · 2007-06-19

STATE OF ARIZONA IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: May 31, 2007 APPEARANCES: Complainant: Thad and Lisa Eckland appeared, pro per. Respondent: Respondent failed to appear either by authorized representative or counsel. Registrar of Contractors: Inspector Cliff Corlett 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. The matter came for hearing via videoconference at the time, date and place set forth in the Registrar of Contractors’ Notice of Hearing dated April 30, 2007. 2. At all times here relevant, Complainants Thad and Lisa Eckland (“Complainants”) were the owners/occupants of a residence located 38 Oceanic Lane, Lake Havasu City, Arizona (“premises/project”). 3. Respondent Arizona Xtreme Pool Builders LLC (“Arizona Xtreme”) is a limited liability company which holds Arizona Contractor’s License No. 196668, Class B-05 (Residential General Swimming Pool) issued by the Registrar of Contractors (“ROC”) on June 7, 2004. Bruce Andrew Davis (“Davis”) is a member and the qualifying party for the license. A review of the licensing database maintained by the ROC indicates that this license was revoked September 6, 2006 in Case Nos. L06-0414 and L06-0437 (Recovery Fund claim) for failure to pay civil penalties of $250.00 (L06-0437) and $500.00 (L06-0414) and in Case Nos. L07-0187 and L06-0539). 4. Respondent Havasu Xtreme Builders LLC (“Havasu Xtreme”) is a limited liability company which holds Arizona Contractor’s License No. 192002, Class B (General Residential) issued by the Registrar of Contractors on January 11, 2004. Bruce Andrew Davis is a member and the qualifying party for the license. A review of the licensing database maintained by the ROC indicates that this license was suspended October 20, 2006 for lack of bond and revoked April 23, 2007 in Case No. L06-0539W. 5. Complainants filed a complaint with the ROC on November 8, 2006 wherein they alleged, inter alia, a problem with “rust coming through tile on table in pool.” Complainants further alleged that they have made several calls to Respondent who, on October 4, 2006, promised to address the matter by October 9th but never appeared at the premises. 6. On January 23, 2007, the Registrar issued a CITATION AND COMPLAINT in Case L07-0225 and L07-0225W charging Respondents with possible violations of A.R.S. §32-1154A 7 and 3 (namely, R4-9-108, the workmanship rule). 7. Respondent Arizona Xtreme filed an answer February 7, 2007 wherein it alleged that the homeowner was told to “lower water level in pool, so water would not touch bottom of table. Table is not plastered and the concrete will stay wet…[and] if the water level touch [sic] the bottom of table, table would rust.” 8. At the hearing, Complainant Thad Eckland (“T. Eckland”) testified and submitted Exhibits C-1 and C-2 which were marked, admitted and considered. 9. Respondents Arizona Xtreme and Havasu Xtreme failed to appear through any authorized representative or counsel. 10. Inspector Cliff Corlett (“Corlett”) testified on behalf of the Registrar of Contractors and described his observations and conclusions on his pre-hearing jobsite inspection.[1] 11. In September 2006, Complainants noticed rust on the subject table and tried to remove it. T. Eckland testified that he contacted Arizona Xtreme on October 4, 2006 who advised that the water level in the subject pool which was set by Respondent Arizona Xtreme. Arizona Xtreme represented to Complainant that it would return to the premises on October 9, 2006 to address the problem but never appeared as promised. 12. T. Eckland testified that Arizona Xtreme built the subject pool and Havasu Xtreme a wall which is not in issue. 13. Subsequently, in January 2007 T. Eckland spoke with a Steve Bopp from Arizona Xtreme on site who advised that the rebar under the tile was rusting. 14. T. Eckland further testified that he lowered the water level in the pool to prevent further rust but such action has compromised the skimming function in the pool. 15. Inspector Corlett testified that he conducted a pre-hearing jobsite inspection on May 25, 2007. At that time, Corlett observed the tiled table in the subject pool and a significant rust stain which did not meet minimum workmanship standards. 16. As of May 9, 2007, the rust remained. (Exhibits C-1 and C-2)

APPLICABLE LAW The CITATION AND COMPLAINT issued by the Registrar of Contractors in Case Nos. L07-0225 and L07-0225W charged Respondents Arizona Xtreme and Havasu Xtreme, respectively, with possible violations of A.R.S. §32-1154A 7 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. … 3. Violation of any rule adopted by the Registrar.

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 Respondents, or either of them, 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. The purpose of licensing Arizona contractors is to regulate the conduct of contracting and protect the public from unscrupulous acts. Beazer Homes Ariz., Inc. v. Goldwater, 196 Ariz. 98, 101, 993 P.2d 1062, 1065 (App. 1999); Better Homes Constr. v. Goldwater, 203 Ariz. 295, 300, 53 P.3d 1139 (App. 2002). The statutory purpose is to prevent unscrupulous or financially irresponsible contractors from deceiving and taking advantage of those who engage them to build. Sobel v. Jones, 96 Ariz. 297, 394 P.2d 415 (1964). 4. This tribunal determines and concludes that Complainant established by a preponderance of credible, probative and relevant evidence that Respondent Arizona Xtreme failed to perform its obligations under the parties’ contract to construct the subject pool and, in particular, the table located therein in a workmanlike manner in violation of A.R.S. § 32- 1154A (3) and A.A.C. R4-9-108, the workmanship rule. 5. It is further determined and concluded that Complainants established by a preponderance of credible, probative and relevant evidence that Respondent Arizona Xtreme’s actions with regard to its work on the subject table were wrongful and resulted in substantial injury to Complainants. Therefore, violations of A.R.S. § 32-1154A (7) have been proven as charged against Arizona Xtreme in the issued Citation in Case No. L07-0225. 6. This tribunal further determines and concludes that Complainants failed to establish by a preponderance of credible, probative and relevant evidence that Respondent Havasu Xtreme violated either A.R.S. §32-1154A (7) or (3) (namely, A.A.C. R4-9-108). 7. This tribunal further determines and concludes that the two prior revocations of Respondent Arizona Xtreme’s license ((L06-0437 and L06-0414) shall serve as factors in aggravation in this matter. 8. It is also determined and concluded that the weight of credible, probative and relevant evidence established that Respondent Arizona Xtreme failed to act in good faith during and subsequent to performing its work on the subject pool and, particularly, the table located therein. Such absence of good faith is further demonstrated by Respondent Arizona Xtreme’s failure to appear at the hearing which shall serve as a factor in aggravation in this matter.

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 Arizona Xtreme be revoked. IT IS FURTHER RECOMMENDED that the entire Citation in Case L07-0225W against Respondent Havasu Xtreme be dismissed.[2] Done this day, June 19, 2007.

______________________ Brian E. Smith Administrative Law Judge

Original transmitted by mail this ____ day of ____________, 2007, to:

Registrar of Contractors Fidelis V. Garcia Legal Department 800 West Washington, 6th Floor Phoenix, AZ 85007

By ___________________________ ----------------------- [1] Inspector Corlett testified that because of the revoked and suspended status, respectively, of respondents Arizona Extreme and Havasu Extreme, no initial jobsite inspection was conducted or Corrective Work Order issued. [2] 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 the certification.

-----------------------

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