ALJDEC decisions subject to certification as final

2017A-1892-CHC-ROC · Registrar of Contractors · 2017-10-16

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Daniel R. Haugarth,

COMPLAINANT,

v.

Integrity Pools and Spas Inc.,

License No:

135859

RESPONDENT.

No. 2017A-1892-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: September 25, 2017

APPEARANCES: Greg Williams, Esq. appeared on behalf of Complainant Daniel R. Haugarth. Joann Brown appeared on behalf of Respondent Integrity Pools and Spas, Inc.

ADMINISTRATIVE LAW JUDGE: Velva Moses-Thompson

_____________________________________________________________________

FINDINGS OF FACT

1. In September and December of 2015, Complainant Daniel R. Haugarth, (hereinafter “Mr. Haugarth”) and Respondent Integrity Pools and Spas, Inc., (hereinafter “Integrity Pools”) entered into a contract wherein Integrity Pools agreed to install a pool and landscaping at Mr. Haugarth’s residence.

2. Gary Dircks (“Gary”) is an Officer of Integrity Pools. Joann Brown is an employee of Integrity Pools.

3. From September 2015 to March of 2017, Integrity Pools performed construction work at Complainant’s home.

4. Integrity Pools did not complete all of the work under the contract.

5. On or about April 10, 2017, the Registrar received a complaint from Mr. Haugarth alleging poor workmanship and abandonment on the part of Integrity Pools.

6. On or about May 22, 2017, Investigator Stephen Lawton, (hereinafter “Investigator Lawton”), conducted a jobsite inspection.

7. On June 1, 2017, Investigator Lawton issued a Directive to Integrity Pools. The June 1, 2017 Directive provides, in relevant part, as follows:

You must provide the Registrar with satisfactory written proof of your compliance with this Directive prior to 5:00 p.m. on June 19, 2017.

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

Complete project per contract agreement between parties.

Complete Ramada by appropriately licensed contractors inclusive of plumbing and electrical with a B licensed contractor as the general contractor capable of hiring sub-contractors to complete the ramada.

8. No representative from Integrity Pools contacted Mr. Haugarth during the time period for compliance under the Directive.

9. Integrity Pools failed to remedy the violations listed in the Directive by appropriate means, prior to the deadline.

10. On January 20, 2017, the Registrar issued a Citation against Respondent, charging possible violations of A.R.S. § 32-1154(A)(1); A.R.S. § 32-1154(A)(3); and A.R.S. § 32-1154(A)(22).

11. Integrity Pools filed a written answer to the Citation and Complaint alleging that it attempted several times to contract Mr. Haugarth to complete the project, but that he had been unable to speak with Complainant. Integrity Pools also stated in its answer that the problem was with regard to all of the “extras and changes” that Mr. Haugarth wanted. However, Integrity Pools agreed that the project had not been completed according to the requirements under the original contract.

12. On September 25, 2017, an evidentiary hearing was held.

13. At hearing, Mr. Haugarth testified that Integrity Pools performed poor work at his residence and abandoned the contract. Mr. Haugarth testified that Integrity Pools did not complete the work required under the contract.

14. Joann Brown testified that she believed that the drainage and other work probably needed to be fixed. Ms. Brown testified that she did not know any facts about the ramada. Ms. Brown stated that Gary has all of the stone work ready to be installed. Ms. Brown stated that the Gary stated that he could have all of the work completed in 60 days. Ms. Brown testified that she did not know whether Integrity Pools contacted Complainant during the time period for compliance under the Directive.

15. Administrative notice is taken of Respondent’s prior License records as reflected on the Registrar’s public website on October 16, 2017. Respondent’s License record shows there is one open complaint against Respondent’s License. Such prior License record shows that one complaint has resulted in discipline against Respondent’s License. Such prior License record also shows that one complaint was resolved or settled by the contractor or withdrawn by the complainant after issuance of a corrective work order or formal citation.

CONCLUSIONS OF LAW

This matter lies within the Registrar’s jurisdiction. See A.R.S. section 32-1101 et seq.

Complainant bears the burden of proof to establish Respondent’s statutory violation by a preponderance of the evidence. See A.R.S. § 41-1092.07(G)(2); A.A.C. R2-19-119(A) and A.A.C. R2-19-119(B)(1); see also Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952). “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).

Ariz. Rev. Stat. section 32-1154(E) provides that the Registrar may

impose a civil penalty of not to exceed five hundred dollars on a contractor for each violation of Ariz. Rev. Stat. section 32-1154(A)(22).

The preponderance of the evidence shows that the issues found by Investigator Lawton constituted workmanship issues with the installation. Therefore, the preponderance of the evidence shows that Respondent did not perform the work in a professional and workmanlike manner in violation of A.R.S. section 32-1154(A)(3), namely A.A.C. R4-9-108.

The preponderance of the evidence shows that Integrity Pools abandoned

the work at Mr. Haugarth’s house in violation of Ariz. Rev. Stat. section 32-1154(A)(1).

The preponderance of the evidence shows that Respondent failed to comply with the Directive without valid justification in violation of A.R.S. section 32-1154(A)(22).

RECOMMENDED ORDER

Based on the foregoing, it is recommended that on the effective date of the Order, the Registrar shall suspend Respondent Integrity Pools and Spas, Inc., License No: 135859 for a period of three (3) days.

It is further recommended that the Registrar require Respondent to pay the sum of $500.00 as a civil penalty pursuant to A.R.S. section 32-1154(E).

It is further recommended that if Respondent fails to pay the entire amount of the civil penalty on or before thirty days following the effective date of the Registrar’s final order, the Registrar revoke Respondent’s licenses, effective on such deadline date. No future license shall be issued to any entity consisting of persons associated with Respondent, as defined in A.R.S. section 32-1101(A)(5), unless Respondent tenders payment of any outstanding prior civil penalty.

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, October 16, 2017.

/s/ Velva Moses-Thompson

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors