ALJDEC decisions subject to certification as final

2016A-2504-ROC · Registrar of Contractors · 2016-11-01

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Ying Xiang,

COMPLAINANT,

v.

Pool Renovation Pros LLC,

License No: 277248,

RESPONDENT.

No. 2016A-2504-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: October 31, 2016

APPEARANCES: Ying Xiang (Complainant) appeared on her own behalf. No one appeared on behalf of Respondent Pool Renovation Pros LLC.

ADMINISTRATIVE LAW JUDGE: Suzanne Marwil

_____________________________________________________________________

Hearing was convened to determine whether Respondent violated state law as alleged by Complainant and as cited by the Registrar of Contractors (Registrar). Evidence and testimony were presented, and based on the entire record, the following Findings of Fact, Conclusions of Law, and Recommended Order are made:

FINDINGS OF FACT

Complainant is the owner/occupant of a residence located at 10674 East Terra Drive, Scottsdale, Arizona 85258.

Respondent holds Arizona Contractor’s License 277248. That license was issued on February 21, 2012 and revoked on October 11, 2016 for failure to pay a civil penalty.

On July 13 2016, Complainant filed a complaint with the Registrar alleging that Respondent failed to complete her pool remodeling project in accordance with the parties’ contract dated April 19, 2016. The complaint alleged that Respondent referred her to Cal Plastering to have the pool remodel finished but then did not pay the bill for it to do so, leaving the pool unfinished.

The Registrar assigned investigator Randy Cason to investigate the complaint. Cason testified that he arranged to perform an inspection on August 8, 2016, and notified Complainant and Respondent of the time and place of the inspection. Cason indicated that at the time of an inspection, he substantiated Complainant’s allegations that the pool remodel was incomplete and had not been completed per the parties’ contract. Cason further noted that the water line tile had been laid and the interior of the pool had been chipped out, but some pieces of plaster remained in place, raising a workmanship issue.

On August 8, 2016, Cason sent Respondent a Directive from the Registrar. The Directive stated in pertinent part as follows:

After investigation, the Registrar has substantiated that your work fails to meet minimum workmanship standards (see A.A.C. R4-9-108). Failure to comply with this Directive constitutes a violation of A.R.S. § 32-1154(A)(22) and may result in discipline of your license and a civil penalty pursuant to A.R.S. § 32-1154(4) of up to $500.00. Failure to comply with this Directive may also be treated as an aggravating factor should the Registrar pursue discipline of your license. You must provide the Registrar with satisfactory written proof of your compliance with this Directive prior to 5:00 p.m. on 8/23/16.

You are hereby directed to remedy the following violations by appropriate means:

The Respondent is to complete the remodeling project for the built in swimming pool interior finish per the contract specifications dated 4/19/2016

Registrar has determined that any workmanship violations alleged in the complaint but not listed above are unsubstantiated and do not require corrective action.

After the time period for compliance with the Directive, Complainant informed Cason that Respondent had not returned to complete the pool remodel or paid another contractor to do so. He therefore forwarded the matter to the Registrar’s legal department for review.

On August 25 2016, the Registrar issued Respondent a Citation. That Citation contained four charges. Charge 1 specified “[a]bandonment of the contract or refused to perform after submitting a bid on work without legal excuse for the abandonment or refusal.” Charge 2 reflected “[d]eparture from or disregard of plans or specifications or any building codes of the state or any political subdivision of the state in any material respect that is prejudicial to another without consent of the owner or the owner's duly authorized representative and without the consent of the person entitled to have the particular construction project or operation completed in accordance with such plans and specifications and code.” Charge 3 referenced “[a] violation of Rule 4-9-108, titled ‘Minimum Construction Standards,’ in the Arizona Administrative Code, and thereby of A.R.S. § 32-1154(A)(3).” Charge 4 specified a violation of A.R.S. § 32-1154(A)(22), namely “[f]ailure 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.”

On September 5, 2016, Ishmael Cervantes, owner of Respondent filed an answer to the Citation, which stated in pertinent part that:

I start this letter by apologizing for the treatment given to the Xiang Residence by Pool Renovation Pros. There are no excuses for the neglect and abandonment of the Xiang pool remodel; as described in the complaint charges. No customer should ever have to go through the misery or endure the time and stress this situation has caused.

Pool Renovation Pros is in Financial Ruin and is in no position to complete the final phase or items needing completion on the Xiang Residence Pool. As of more than 60 days now; Pool Renovation Pros has lost all its employees and contractors due to its financial issues. Within the last 30 days Pool Renovation Pros lost its Insurance and Bonding coverage due to lack of payment and claims. Pool Renovation Pros has ceased to sign new contracts due to they are without the items I described above.

Pool Renovation Pros takes full responsibility for its actions creating the complaint charges. Pool Renovation Pros is willing to help in any way its current financial position will allow. I regret to say that Pool renovation Pros will not be able to complete in full any of the open Remodel Contracts at this time due to its current financial position.

Hearing was convened at the Office of Administrative Hearings on October 31, 2016 at 1:00 p.m.

Respondent failed to appear at the time scheduled for hearing and did not request to appear telephonically. After the expiration of a 20 minute grace period, the Administrative Law Judge conducted the hearing in Respondent’s absence.

CONCLUSIONS OF LAW

The Registrar 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.

Respondent’s revoked license does not deprive Complainant of her right to prosecute their complaint or prevent the Registrar from determining the merits of the complaint. See A.R.S. § 32-1154(D).

The copy of the Notice of Hearing that the Registrar mailed to Respondent at its address of record was reasonable and Respondent is deemed to have received notice of the hearing. A.R.S. §§ 41-1092.04 and 41-1092.05(D).

To warrant such sanctions by the Registrar, Complainant must demonstrate by a preponderance of the evidence that Respondent violated the statutory section 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. 431, 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)

Complainant established that Respondent abandoned the contract or refused to perform after submitting a bid for work without legal excuse for the abandonment or refusal in violation of A.R.S. § 32-1154(A)(1). Respondent admitted it failed to finish the pool remodel it contracted to perform.

Undisputed credible evidence established that Respondent failed to follow the parties’ contract and complete the work specified in the parties’ contract. Accordingly, Complainant has met her burden to prove a violation of A.R.S. § 32-1154(A)(2).

Undisputed credible testimony established Respondent provided deficient work in chipping out the interior of the pool and left existing pieces of plaster in place. Thus, Complainant established Respondent’s work iwas not done in a professional and workmanlike manner in violation of A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108.

An A.R.S. § 32-1154(A)(22) violation is demonstrated, but a civil penalty is not necessary on the present record inasmuch as Respondent’s license is already revoked and Respondent has stated it is out of business and lacks the resources to pay such a penalty.

RECOMMENDED ORDER

Based on the foregoing, it is recommended that on the effective date of the Order, the Registrar shall revoke Respondent’s License No. License No: 277248.

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 will be 40 days from the date of that certification.

Done this day, November 1, 2016.

/s/ Suzanne Marwil

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors