ALJDEC decisions subject to certification as final

07F-Y0247-ROC · Registrar of Contractors · 2008-03-25

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: March 17th, 2008; 9:00 a.m. APPEARANCES: Complainants, Mr. Dale and Ms. Rebecca Miller, represented themselves. Respondent, Gomez Pools and Spas, LLC, failed to appear. ADMINISTRATIVE LAW JUDGE: Grant Winston _____________________________________________________________________ The administrative hearing of this matter was held in the Office of Administrative Hearings, Tucson, and via webcam from the Registrar of Contractors’ Yuma office. Testimony was heard and other evidence admitted, and, based on the entire record, the following Findings of Fact, Conclusions of Law and Recommended Order are made.

FINDINGS OF FACT 1. Respondent Gomez Pools and Spas, LLC, was a contractor licensed by and doing business in the State of Arizona, formerly holding Class KA-05 License number 210506. 2. Respondent’s license was current at the time Respondent entered into a contract with Complainants, Mr. Dale and Ms. Rebecca Miller, to construct a swimming pool at their Yuma, Arizona residence on February 20th, 2007. The contract price was $29,090.40. 3. Complainants paid Respondent a down payment of $1,000.00 by personal check at the time they entered into the contract. In conformity to Respondent’s request, Complainants paid Respondent an additional payment of $12,000.00 for ordering the pool shell on February 22nd, 2007. 4. Respondent never began construction on the pool after taking the Complainants’ money. Respondent never even ordered the pools shell from the manufacturer. 5. Respondent’s Arizona contractor’s license was revoked in March, 2007. Respondent’s agent and representative, Mr. Freddy Gomez, assured Complainants that he would see to it that another contractor finished the project. 6. Complainants filed the instant Complaint in the Arizona Registrar of Contractors on June 12th, 2007. 7. The Complaint was assigned to Registrar of Contractors Inspector Daryl McCloskey. Inspector McCloskey verified by his pre-hearing inspection two days prior to this administrative hearing that neither Respondent, nor any appropriately licensed contractor at Respondent’s behest, had so much as turned one shovelful of dirt at the Complainants’ residence. 8. Notice is taken of Respondent’s prior license with the Arizona Registrar of Contractors. This Respondent’s license record includes multiple suspensions and multiple revocations including for workmanship issues. No fewer than two dozen Complaints against this license are on record with the Registrar.

CONCLUSIONS OF LAW 1. This administrative hearing was held under authority of and pursuant to A.R.S. 32-1156, and A.R.S. 41-1092. 2. Respondent is charged in the instant Citation and Complaint with possible violations of A.R.S. 32-1154.A.7, and 11. 3. The greater weight of evidence proved that Respondent did refuse performance of the contract after submitting the bid, without legal excuse. 4. Independently of the violation of A.R.S. 32-1154.A.11, the greater weight of evidence, and reasonable inference drawn therefrom, proves that the Respondent’s failure to perform was no simple abandonment, but was fraudulent in violation of A.R.S. 32- 1154.A.7. 5. Respondent’s actions warrant revocation (again) of the subject license. 6. As this is a residential matter, Complainants may file a claim for recovery in the Arizona Registrar of Contractors’ Residential Contractors’ Recovery Fund. A.R.S. 32-1131 et sequitur.

RECOMMENDED ORDER In view of the foregoing Findings of Fact and Conclusions of Law it is hereby recommended that Respondent’s Class KA-05 License number 210506 be revoked on the effective date of this Order (40 days after the date of service appearing on the Registrar’s certification on the Order. In the event of certification of the Administrative Law Judge’s Decision and Order by the Director of the Office of Administrative Hearings, then the effective date of the Order shall be 40 days from the date of that certification. Done this day, March 20th, 2008.

______________________________________ Grant Winston Administrative Law Judge

Original transmitted by mail this ____ day of ____________, 2008, to:

Registrar of Contractors Fidelis V. Garcia 3838 N. Central Ave., Ste. 400 Phoenix, AZ 85012-1906

By ___________________________

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Office of Administrative Hearings 100 N. Stone Ave., Suite 704 Tucson, Arizona 85701 (520) 628-5488