ALJDEC decisions subject to certification as final

2017A-3940-CHC-ROC · Registrar of Contractors · 2018-04-23

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Michelle L. Fraga,

COMPLAINANT,

v.

Arizona Pool & Landscape Construction LLC,

License No: 296198, 296199

RESPONDENT.

No. 2017A-3940-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: April 3, 2018

APPEARANCES: Complainant Michelle L. Fraga appeared on her own behalf. Respondent Arizona Pool & Landscape Construction LLC was represented by Fidelis V. Garcia.

ADMINISTRATIVE LAW JUDGE: Tammy L. Eigenheer

_____________________________________________________________________

FINDINGS OF FACT

Arizona Pool & Landscape Construction LLC (Respondent) is the holder of License No. 296198 and 296199 issued by the Arizona Registrar of Contractors (Registrar).

On or about May 11, 2015, Michelle L. Fraga (Complainant) entered into a contract with Respondent to, among other things, add a 7 foot round spa to an existing swimming pool.

On or about August 1, 2017, the Registrar received a Complaint against Respondent from Complainant alleging poor work with respect to the project.

The Registrar assigned the complaint to Investigator Timothy Pennington. After a jobsite inspection, Investigator Pennington issued a written directive to Respondent that provided 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 the issuance of a Citation, discipline of your license and a civil penalty pursuant to A.R.S. § 32-1154(E) 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 September 5, 2017.

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

SPA is 6’1” across and the contract states 7’x7’.

Deck cracks alongside of home.

Excessive cracking in decking heaving. Next to SPA

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

Following the issuance of the written directive, Respondent performed some corrective work on the cracks alongside the home. After the deadline in the directive expired, Investigator Pennington was notified that nothing had been done regarding the size of the spa or the cracks and heaving next to the spa.

The Registrar issued a Citation against Respondent, charging possible violations of A.R.S. § 32-1154(A)(2) and A.A.C. R4-9-108, and thereby of A.R.S. § 32-1154(A)(3).

Investigator Pennington testified that the contract and the permit provided the spa would be seven feet in diameter, but the spa was only six feet and one inch in diameter. Investigator Pennington stated that the Registrar’s standards allows a two inch deviation from the contract size.

Complainant testified that the spa was almost a foot different than the permit and plans. Complainant also indicated that the cracks around the spa kept getting bigger and bigger. Complainant stated that the cracking on the side of the house was fixed, but it had returned and would get worse over time. Complainant testified that when Respondent was performing the corrective work on the side of the home, she was told Respondent was “getting engineering” for the spa issue.

While Respondent’s counsel was present, no one from Respondent appeared for the hearing. As such, Respondent’s counsel did not question the witnesses or present any evidence on behalf of his client.

Administrative notice is taken of Respondent’s prior License record on April 23, 2018. Such prior License record reflects that Respondent’s License No. 296198 was first issued on April 16, 2015, and is revoked. Such prior License record also reflects that there were five complaints resulting in discipline and five resolved/settled/withdrawn complaints against Respondent’s license. License No. 296198 was suspended for lack of bond from December 19, 2016, through January 11, 2017; suspended until compliance from June 23, 2017, through July 24, 2017, and on November 8, 2017; revoked for failure to pay a civil penalty on February 16, 2018, and on March 30, 2018; and revoked on December 5, 2017, January 5, 2018, January 31, 2018, March 13, 2018, and April 11, 2018.

Administrative notice is taken of Respondent’s prior License record on April 23, 2018. Such prior License record reflects that Respondent’s License No. 296198 was first issued on April 16, 2015, and is revoked. Such prior License record also reflects that there were four complaints resulting in discipline and one resolved/settled/withdrawn complaint against Respondent’s license. License No. 296199 was suspended for lack of bond from December 19, 2016, through January 11, 2017, and on January 11, 2018; suspended until compliance from June 23, 2017, through July 24, 2017, on November 8, 2017, and on December 4, 2017; revoked for failure to pay a civil penalty on February 16, 2018; and revoked on December 5, 2017, January 5, 2018, and March 13, 2018.

CONCLUSIONS OF LAW

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

Complainant bears the burden of proof to establish Respondent’s statutory violations 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).

The evidence established that Respondent did not build the spa in accordance with the contract, plans, or permits. Therefore, Complainant established that Respondent departed from and disregarded the plans and specifications for the project in violation of A.R.S. § 32-1154(A)(2).

The evidence established that Respondent’s work was not in conformity with the Registrar’s standards. Therefore, Complainant established that Respondent did not complete the project in a workmanlike manner in violation of A.A.C. R4-9-108, and thereby of A.R.S. § 32-1154(A)(3).

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. 296198 and 296199.

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, April 23, 2018

/s/ Tammy L. Eigenheer

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors