ALJDEC decisions subject to certification as final

2009A-2062796-ROC · Registrar of Contractors · 2013-01-04

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: December 21, 2012, at 1:00 p.m. APPEARANCES: Ramiro Magana (hereinafter “Complainant”) appeared on his own behalf. Kokopelli Kustom Pools and Spas LLC (hereinafter “Kokopelli”) appeared through its qualifying party, Juan Rosendo Rendon. A Spanish/English interpreter was present for the hearing. ADMINISTRATIVE LAW JUDGE: M. Douglas _____________________________________________________________________

Evidence and testimony were presented and the following Findings of Fact, Conclusions of Law and Recommended Order are made: FINDINGS OF FACT 1. Kokopelli is the holder of License No. B-5.247962-R issued by the Registrar of Contractors. 2. This is a residential matter where Kokopelli constructed a pool deck for the swimming pool at Complainant’s residence. The new pool deck was completed by Kokopelli on or about July 12, 2008. The new pool deck began to lift from the swimming pool shell and Complainant notified Kokopelli of the problems with the pool deck. When Kokopelli refused to correct the lifting problem with the new pool deck, Complainant filed a formal Complaint against Kokopelli with the Registrar of Contractors. 3. Pursuant to the filing of the formal Complaint, an assigned Agency Inspector, Daryl McCloskey (hereinafter “Inspector McCloskey”), conducted an onsite inspection. Inspector McCloskey issued a written Corrective Work Order on June 3, 2009, directing Kokopelli to perform designated corrective work on Complainant’s swimming pool deck. 4. The Corrective Work Order provided, in pertinent part, as follows: THE CONTRACTOR IS TO CORRECT BY APPROPRIATE MEANS THE FOLLOWING ITEMS: 1) The pool deck on the north side that has lifted off the pool shell. 2) The pool deck on the east side that has lifted off the pool shell. 3) The pool deck on the west side that has lifted off the pool shell.

5. Inspector McCloskey testified that during the first onsite inspection, Kokopelli’s qualifying party, Juan Rosendo Rendon (hereinafter “Mr. Rendon”), acknowledged that Kokopelli had constructed the pool deck for Complainant’s swimming pool. Inspector McCloskey stated that he performed a prehearing inspection on November 20, 2012. Inspector McCloskey testified that Kokopelli had performed no corrective work on Complainant’s pool deck and that the pool deck had continued to lift. Inspector McCloskey stated that Mr. Rendon acknowledged that Kokopelli was not a licensed contractor when it constructed the pool deck for Complainant’s swimming pool on July 7, 2008, through July 12, 2008. Inspector McCloskey testified that License No. B-5.247962-R of Kokopelli was not issued until August 8, 2008. Inspector McCloskey stated that Complainant paid Kokopelli over $1,000.00 for its work on Complainant’s pool deck.[1] 6. Complainant testified that he would not have retained Kokopelli to construct the pool deck at his residence if he had known that Kokopelli was not licensed when it performed construction work at his residence. Complainant stated that Mr. Rendon acknowledged that Kokopelli was not a licensed contractor after it completed the construction of the pool deck at his residence. Complainant testified that Kokopelli is responsible for correcting the lifting problems with his pool deck.[2] 7. Mr. Rendon testified that he performed the construction work on Complainant’s pool deck as a “side-job.” Mr. Rendon stated that there is no warranty from Kokopelli for the construction work that was performed on Complainant’s pool deck.[3] 8. Administrative notice is taken of Kokopelli’s prior license record as reflected on the Registrar of Contractors’ public website on January 4, 2013. Such prior license record reflects that License No. B-5.247962-R of Kokopelli was suspended by the Registrar of Contractors for non- renewal on September 1, 2012, and suspended for lack of bond on March 8, 2012. CONCLUSIONS OF LAW 1. The burden of proof at an administrative hearing falls to the party asserting a claim, right, or entitlement and the standard of proof on all issues in these matters is by a preponderance of the evidence. See A.A.C. R2-19-119. 2. A preponderance of the evidence is “such proof as convinces the trier of fact that the contention is more probably true than not.” Morris K. Udall, Arizona Law of Evidence § 5 (1960). 3. The pool deck installed by Kokopelli at Complainant’s residence has lifted away from the swimming pool shell and fails to comply with applicable workmanship and industry standards. This Tribunal concludes that Kokopelli violated the charged provision of A.R.S. § 32- 1154(A)(3),[4] namely, A.A.C. R4-9-108. 4. Kokopelli performed unlicensed construction work at Complainant’s residence during July 2008, violating applicable workmanship and industry standards. The pool deck at Complainant’s residence now requires extensive corrective action. Kokopelli did not disclose that it was not a licensed contractor until the construction work on Complainant’s pool deck was completed. This Tribunal concludes that Kokopelli violated the charged provision of former A.R.S. § 32-1154(A)(7).[5] 5. Kokopelli performed unlicensed construction work at Complainant’s residence during July 2008. Kokopelli was paid over $1,000.00 for its unlicensed construction work at Complainant’s residence. Kokopelli’s construction work at Complainant’s residence failed to comply with applicable workmanship and industry standards. Kokopelli’s unlicensed contracting, if known at the time of issuance of its license, would have been grounds to deny the issuance the license. This Tribunal concludes that Kokopelli violated the charged provision of A.R.S. § 32- 1154(A)(20).[6] 6. Kokopelli failed to comply with the terms of the Corrective Work Order that was issued in this matter. This Tribunal concludes that Kokopelli violated the charged provision of A.R.S. § 32-1154(A)(23).[7] RECOMMENDed order In view of the foregoing, it is recommended that License No. B- 5.247962-R of Kokopelli be revoked on the effective date of this Order. It is further recommended, in addition to the above-provided penalties, if any, that Kokopelli pay the sum of $500.00 to the Registrar of Contractors by way of a civil penalty pursuant to A.R.S. § 32-1154(D). The failure by Kokopelli to pay the entire amount of the aforesaid civil penalty on or before 30 days following the effective date of the Order entered in this matter shall result in the automatic revocation of Kokopelli’s contractor’s license, effective on such deadline date. No future license shall be issued to any entity consisting of persons associated with Kokopelli, as defined in A.R.S. § 32-1101(A)(5), unless payment of any outstanding prior civil penalty is tendered. In the event of certification of this Administrative Law Judge Decision by the Director of the Office of Administrative Hearings, the effective date of the Order will be 40 days from the date of the certification.

Done this day, January 4, 2013.

/s/ M. Douglas Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors

----------------------- [1] 12/21/12 Hearing Record (Hereinafter “H.R.”) at 13:42-20:12. [2] H.R. at 20:13-25:30. [3] H.R. at 25:31-28:06. [4] A.R.S. § 32-1154(A)(3) includes among the grounds for disciplinary action against a contractor’s license, violation of any rule adopted by the registrar. [5] When this Citation and Complaint was issued on September 11, 2008, A.R.S. § 32-1154(A)(7) included among the grounds for disciplinary action against a contractor’s license, the doing of a wrongful or fraudulent act by the licensee as a contractor resulting in another person being substantially injured. [6] A.R.S. § 32-1154(A)(20) includes among the grounds for disciplinary action against a contractor’s license, subsequent discovery of facts which if known at the time of issuance of a license or the renewal of a license would have been grounds to deny the issuance or renewal of a license. [7] A.R.S. § 32-1154(A)(23) includes among the grounds for disciplinary action against a contractor’s license, 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 a 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 a violation of this paragraph until after a hearing has been held.

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