ALJDEC decisions subject to certification as final

2016A-4980-NPC-ROC · Registrar of Contractors · 2017-03-06

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Ruiz's Pool Plastering LLC,

COMPLAINANT,

v.

Integrity Pools and Spas Inc.,

License Nos. B-5.135859-R

CR21.173181-D,

RESPONDENT.

No. 2016A-4980-NPC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: February 27, 2017, at 1:00 p.m.

APPEARANCES: Ruiz’s Pool Plastering LLC (“Complainant”) appeared through Juan Angel Ruiz Vazquez (“Mr. Ruiz”), its qualifying party/member; Integrity Pools and Spas Inc. (“Respondent”) appeared through Gary Richard Dircks (“Mr. Dircks”), its qualifying party/officer; Interpreter Guadalupe Carnagey provided Spanish translation.

ADMINISTRATIVE LAW JUDGE: Diane Mihalsky

_____________________________________________________________________

FINDINGS OF FACT

Background and Procedure

On or about June 6, 1998, the Arizona Registrar of Contractors (“the Registrar”) issued License No. B-5.135859-R for residential general swimming pool contracting to Respondent.

On or about March 29, 2002, the Registrar issued License No. CR21.173181-D for dual landscaping and irrigation systems to Respondent.

On or about March 24, 2005, the Registrar issued License No. CR36.205350-D for dual plastering to Complainant.

On or about December 12, 2016, Complainant filed a complaint with the Registrar alleging that Respondent owed Complainant $15,000.00 for plastering a pool at 8117 W. Patrick Lane, Peoria, Arizona 85383 with Midnight Blue and Abalone plaster. According to the complaint, the date of the contract was February 20, 2016, and Complainant last worked on the job on February 21, 2016.

On or about January 3, 2017, the Registrar issued a Citation for Alleged Violation of A.R.S. § 32-1154(A)(10) against Respondent.

Respondent filed a timely written answer to the Citation and Complaint, denying any statutory violation, affirmatively alleging as follows:

[Complainant] was paid for the job in question with credit [Respondent] had from another job that was paid for but never completed.

It is true that the customer is holding money from [Respondent] on the job in question; but part of this includes the pool interior, which I have discussed with Juan Ruiz.

The Registrar referred the matter to the Office of Administrative Hearings, an independent state agency, for an evidentiary hearing.

A hearing was held on February 27, 2017. Complainant submitted two exhibits and presented Mr. Ruiz’s testimony. Respondent submitted three exhibits and presented Mr. Dircks’ testimony.

Additional Hearing Evidence

Mr. Ruiz and Mr. Dircks both testified that Complainant had performed a number of subcontracts to plaster pools that Respondent was constructing. Neither party submitted the subcontract for the pool on W. Patrick Ln. or any other pools.

Mr. Ruiz testified that Complainant plastered a large, commercial pool on W. Patrick Ln. over a year ago. Mr. Ruiz testified that because the project was so large, he recommended that the plastering be done in two parts, but that the owner did not want that. Because the pool was black, the cement would show dust over the pebbles. Mr. Ruiz testified that Complainant put acid in the pool for two weeks to clean the dust from the pebbles and, after the water was cleared, he called Mr. Dircks for payment.

Mr. Dircks testified consistently with Respondent’s written answer. Mr. Dircks did not dispute that Complainant performed a subcontract to plaster the pool interior at W. Patrick Ln. Mr. Dircks testified that when Complainant left acid in the pool for two weeks, it eroded the pebbles in the plaster. Mr. Dircks testified that, as a result, the owner refused to pay Respondent for the pool and that Complainant refused to repair its work.

Mr. Ruiz testified that he met with the owner of the pool on W. Patrick Ln., Dennis Roccaforte, and was told that Respondent had been paid in full for the pool and that Mr. Roccaforte had held back monies for the landscaping part of the project, which was unsatisfactory. Complainant submitted an unsigned letter from Mr. Roccaforte dated January 13, 2017, that stated in relevant part as follows:

You asked me if I had a problem with your work because you had been told that by [Respondent]. [Mr. Dircks] further told you that I have not paid him for the pool because I was unhappy with your work. That is completely false and a boldface lie. I paid them for plastering last March 2016.

Mr. Ruiz denied that he had failed to perform any necessary repairs. He testified that if he had been informed that the pool needed repair, he would have performed repairs.

Mr. Dircks testified that AJE Construction & Renovations had not paid Respondent for three jobs due to Complainant’s failure to perform any work on the jobs. Respondent submitted three invoices to AJE Construction & Renovations for the three jobs, all of which had “Not Paid Due to Ruiz” handwritten on them: (1) Invoice No. 1290 dated May 12, 2015, for Casa DeMonte at 64th St. and Camelback in Scottsdale, in the amount of $10,092.50; (2) Invoice No. 1264 dated June 11, 2015, for 21220 W. Mountain Grove Place in Verrado in Buckeye, in the amount of $2,300.00; and (3) Invoice No. 1285 dated June 22, 2015, for San Marina Apartments at 7002 W. Indian School Rd., Phoenix, in the amount of $4,750.00.

Pursuant to A.A.C. R4-9-117, administrative notice is taken of Respondent’s license history on the Registrar’s public website on this date. Both of Respondent’s licenses are current and in good standing. License No. B-5.135859-R was suspended as discipline in another complaint between December 14, 1999, and February 3, 2000, and has been administratively suspended nine times for insufficient or lack of bond, non-renewal, or lack of a qualifying party. License No. CR21.173181-D was suspended as discipline in another complaint between January 28, 2006, and December 22, 2006, and has been administratively suspended six times for non-renewal or lack of bond.

CONCLUSIONS OF LAW

This dispute lies within the Registrar’s jurisdiction to resolve.

Complainant bears the burden of proof to establish cause to discipline Respondent’s contractor’s license by a preponderance of the evidence. Respondent bears the burden of proof to establish affirmative defenses by the same evidentiary standard.

“A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.” A preponderance of the evidence is “[t]he greater weight of the evidence, not necessarily established by the greater number of witnesses testifying to a fact but by evidence that has the most convincing force; superior evidentiary weight that, though not sufficient to free the mind wholly from all reasonable doubt, is still sufficient to incline a fair and impartial mind to one side of the issue rather than the other.”

Respondent did not dispute that it subcontracted plastering of the interior of the pool at W. Patrick Ln. to Complainant for $15,000.00 and that Complainant plastered the pool.

Respondent did not establish that the parties’ subcontract allowed it to recoup the cost of previous jobs by refusing to pay Complainant for a current job. The three jobs that Complainant allegedly abandoned occurred more than eight months before the job at issue on W. Patrick Ln. Respondent could have filed a complaint against Complainant with the Registrar for poor workmanship or abandonment or could have filed a lawsuit in a judicial forum to recover its alleged damages. Mr. Dircks did not attempt to explain why Respondent did not hire another plaster subcontractor to complete the work. The Registrar’s statutes do not allow a general contractor to enter into a subcontract with no intention of paying under the subcontract to recoup alleged debts owed on other jobs. Therefore, Respondent did not establish that the payment due for the job on W. Patrick Ln. is offset by AJE Construction & Renovation’s alleged refusal to pay Respondent for the three jobs eight months earlier due to Complainant’s alleged abandonment of those jobs.

Mr. Dircks testified that the owner of the pool at W. Patrick Ln. did not pay Respondent for the pool due to Complainant’s poor work. Respondent did not offer any evidence of non-payment other than Mr. Dircks’ testimony.

Mr. Ruiz credibly testified that he spoke to Mr. Roccaforte, that Mr. Roccaforte said that he had paid Respondent for the plastering of the pool, and that Respondent never requested that Complainant perform any repairs on the pool. Although Mr. Ruiz’s testimony about Mr. Roccaforte’s statements and the unsigned letter constitute hearsay, hearsay may be admitted in an administrative hearing. Hearsay may be relied upon if it is the kind of evidence that reasonable persons would rely upon in serious matters.

Based on the totality of the evidence, Respondent did not establish that Complainant performed poor work on the pool at W. Patrick Ln. or that the owner of the pool refused to pay Respondent based on Complainant’s poor work.

Therefore, Complainant established that Respondent failed to pay Complainant $15,000.00 for the plaster work on the pool at W. Patrick Ln., thereby furnishing cause for the Registrar to suspend or revoke Respondent’s license under A.R.S. § 32-1154(A)(10).

RECOMMENDED ORDER

Based on the foregoing, it is recommended that on the effective date of the final order in this matter, Respondent Integrity Pools and Spas Inc.’s License Nos. B-5.135859-R and CR21.173181-D shall be suspended until it provides written proof to the Registrar that it has paid Complainant Ruiz’s Pool Plastering LLC $15,000.00 by certified or cashier’s check or otherwise has resolved Complainant’s complaint in Case No. 2016-4980 to Complainant’s satisfaction.

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 five days from the date of that certification.

Done this day, March 6, 2017.

/s/ Diane Mihalsky

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors