ALJDEC decisions subject to certification as final

2016A-367-ROC · Registrar of Contractors · 2016-08-04

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: July 15, 2016 APPEARANCES: Joseph and Abigail Wogoman, Complainants, and Felipe Sanchez and Mayra Chavez on behalf of Respondent ADMINISTRATIVE LAW JUDGE: Roger A. Geddes _____________________________________________________________________ FINDINGS OF FACT 1. 4 Sanchez Pool Plastering LLC (Respondent), is the holder of License Numbers 200264, 279899 and 280255 issued by the Registrar of Contractors (Registrar). 2. On or about February 1, 2016, Joseph and Abigail Wogoman (Complainants), filed a Complaint against Respondent with the Registrar alleging various workmanship issues in connection with a pool deck resurfacing project performed by Respondent for Complainant. 3. On March 23, 2016, the Registrar issued a Directive to Respondent substantiating that Respondent’s work failed to meet minimum workmanship standards (see A.A.C. R4-9-108) and requiring that Respondent remedy specific violations as detailed in the Directive. 4. The parties were unable to resolve their differences, and Complainants requested an administrative hearing. The Registrar then issued a Citation for Alleged Violation of A.R.S. § 32-1154(A)(3) and (A)(22), dated April 18, 2016. The Registrar referred the matter to the Office of Administrative Hearings, an independent state agency, for an evidentiary hearing. 5. The Registrar issued a Notice of Hearing setting a hearing for July 15, 2016, at 1:00 P.M. The Registrar mailed a copy of the Notice of Hearing to Respondent on or about May 19, 2016, at its address of record. 6. A hearing was held on July 15, 2016, at 1:00 P.M. Complainants testified and Respondent presented the testimony of Felipe Sanchez and Mayra Chavez. Steve Klein from the Registrar was also present and testified. 7. Both Joseph and Abigail Wogoman testified of various pool deck issues after Respondent completed the work including the deck chipping and breaking in areas, the grout breaking and cracking, and the wrong color of coating applied. They further testified that Respondent did not complete any corrective measures. 8. Felipe Sanchez on behalf of Respondent did not deny that workmanship issues existed, but testified that Respondent was only hired to resurface the pool and that the decking portion of the project was performed by another contractor that he recommended to Complainant who he identified only as “Luis.” 9. Joseph Wogoman countered by testifying that all payments on the project for the pool resurfacing and the deck resurfacing were made to “Ray,” who represented himself as acting for Respondent and who was later identified as Mr. Sanchez’s brother-in-law. Further, the bid on the project from Respondent and on Respondent’s letterhead, dated December 30, 2014, specifically delineated work to be done on the pool deck including grinding high spots, filling in cracks, and painting. There was no evidence of a bid from another contractor to resurface the pool deck. Pursuant to A.A.C. R4-9-117, administrative notice is taken of the Registrar’s public website. On December 16, 2014, Respondent’s License Numbers 200264, 279899 and 280255 were suspended due to lack of a qualifying party and revoked on May 17, 2016, for failure to pay a civil penalty. The administratively revoked status of Respondent’s license is considered as a factor in aggravation of any determination of discipline. CONCLUSIONS OF LAW 1. 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. 2. The administratively revoked status of Respondent’s license does not deprive Complainant of its right to prosecute its complaint against Respondent or prevent the Registrar from determining the merits of Complainant’s complaint. See A.R.S. § 32-1154(C) (“The expiration, cancellation, suspension or revocation of a license . . . shall not deprive the registrar of jurisdiction to proceed with any investigation of or action or disciplinary proceeding against such license, or to render a decision suspending or revoking such a license . . .”). 3. 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 preponderance of the evidence. See A.A.C. R2-19-119. 4. To warrant such sanctions by the Registrar, Complainants 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) 5. Ariz. Rev. Stat. section 32-1154(A) provides that The holder of a license or any person listed on a license pursuant to this chapter shall not commit any of the following acts or omissions: ***** 3. Violation of any rule adopted by the registrar. ***** 22. 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.

6. Ariz. Admin. Code section R4-9-108(A) provides that “A contractor shall perform all work in a professional manner.” 7. Complainant has established that Respondent’s license should be disciplined for a violation of A.R.S. § 32-1154(A)(3) and (A)(22), There was no evidence presented that the subject work was performed in a professional manner and there was no evidence presented that a contractor independent of Respondent was responsible for the pool decking issues. RECOMMENDED ORDER Based on the foregoing, it is recommended that on the effective date of this Order, 4 Sanchez Pool Plastering LLC’s License Numbers 200264, 279899 and 280255 are revoked until the Registrar receives proof that 4 Sanchez Pool Plastering, LLC, has complied with the March 23, 2016, Directive. 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 five days from the date of the certification. Done this day, August 4, 2016.

/s/ Roger A. Geddes Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director Registrar of Contractors

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