ALJDEC decisions subject to certification as final

2017A-5193-RFA-LS-ROC · Registrar of Contractors · 2021-04-28

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Riccardo R. Foggia Jr.,

COMPLAINANT,

v.

Arizona Pool & Landscape Construction LLC,

License No. ROC 296199,

RESPONDENT.

No. 2017A-5193-RFA-LS-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: April 12, 2021

APPEARANCES: Complainant Riccardo R. Foggia, Jr. appeared on behalf of himself. Assistant Attorney General Sarah A. Asta appeared on behalf of the Arizona Registrar of Contractors.

ADMINISTRATIVE LAW JUDGE: Velva Moses-Thompson

_____________________________________________________________________

FINDINGS OF FACT

1. On or about October 13, 2017, Complainant Riccardo R. Foggia Jr. filed a

complaint with the Arizona Registrar of Contractors (Registrar) against Respondent Arizona Pool & Landscape Construction, LLC (Arizona Pool). See Exhibit 1.

2. On November 9, 2017, Registrar Investigator Beau Cruz investigated the

complaint. See Exhibit 2.

3. On November 13, 2017, the Registrar issued a Directive to Arizona Pool.

See Exhibit 3. Through the Directive, the Registrar found that Arizona Pool’s work failed to meet minimum workmanship standards. The Registrar directed Arizona Pool to remedy complaint items 1, 2, 3, 5, and 6 by appropriate means:

Complaint Item 1: Our pool is unfinished. It requires equipment setting / plumbing and pebble sheen finish on interior.

Shotcrete has been applied to pool/spa shells and have been plumbed (capped) but no heads and/or drain cover (s) installed and pebble sheen finish has not been applied. Respondent has failed to install all required pool equipment and, none noted in the pool equipment coral. Respondent is to complete the pool installation as per agreement between the parties.

Complaint Item 2: Poor workmanlike finish around driveway center drain

Damaged grate bed ledge pavers in the driveway catch basin drain.

Complaint Item 3: unsecured pavers at the driveway entry

Unsecured paver at the left corner of driveway entry.

Complaint Item 5: Unfinished paver work on the west side yard

Unsecured paves noted at the southwest (S/W) corner of the hot tub recessed pad located in the west (W) side yard and, missing pavers to the right of the rear yard access gate located in the west (W) side yard.

Complaint Item 6: Unfinished paver work – east side of the house

Finish installing paver sin the east (E) side yard adjacent to the pool equipment coral area.

4. On December 1, 2017, the Registrar issued a Citation against Arizona Pool’s license. See Exhibit 4. Through the Citation, the Registrar alleged that Arizona Pool had violated Arizona Revised Statutes (A.R.S.) section 32-1154(A)(1), A.R.S. section 32-1154(A)(3), A.A.C. Rule 4-9-108; A.R.S. section 32-1154 (A)(12); A.R.S. sections 32-1124(B) and 32-1158(B); A.R.S. section 32-1154(A)(17) and (A)(22).

See id.

5. On December 27, 2017, the Registrar issued a Final Administrative Decision and Order and found that Arizona Pool violated A.R.S. section 32-1154(A)(1), (A)(3), (A)(12), (A)(17); A.R.S. section 32-1124(B) and A.R.S. section 32-1158(B).

The Registrar revoked Arizona Pool’s licenses. See Exhibit 5.

6. On or about March 11, 2019, Complainant filed a Registrar’s Recovery Fund (Fund) claim. Mr. Foggio requested an award in the amount of $70,814.84. See Exhibit 6. Complainant reported the following information on the March 11, 2019 claim form:

The amount left owing on the contract was $10,500.

The total amount of the contract was $58,900.

A change order in the amount of $42,344.11.

The total amount that paid to Arizona Pool was $91,244.11.

The total amount paid to repair the contractor’s work was $70,814.84.

Proof of payment to Arizona Pool in the amount of $91,244.11.

7. Complainant submitted the following items to the Registrar with his claim:

Arizona Pool construction contract in the amount of $58,500.

Arizona Pool landscaping change order in the amount of $48,650.

A proposal to repair the pool from California Pools & Landscape.

An estimate to repair the pool from Money’s Worth Pool Construction.

A proposal to repair the pool from Aqua Essence Pools, Inc.

A contract to repair the pool from Aqua Essence Pools, Inc.

An invoice for additional pool work from Aqua Essence Pools, Inc.

A proposal for engineering and surveying services from Graham Surveying & Engineering, Inc. (Graham).

Proof of payment to Graham Surveying & Engineering

Proof of payment for repairs to NB Custom Metal Works

Proof of payment for repairs to Juan Lopez Landscaping

8. Shaquira Adebule is a legal assistant at the Registrar. Ms. Adebule reviewed Complainant’s claim. The change order submitted by Complainant included a handwritten note that the amount of the change order was reduced by $6,305.89 for omissions. See Exhibit 8. On February 1, 2021, Ms. Adebule asked Complainant to explain the omissions. See Exhibit 26. Complainant responded that he was not sure but he believed that the amount was already paid. However, Complainant provided no proof of payment of the change order in the amount of $6,305.89. See id. Ms. Adebule determined that the amount of the change order was $48,650.

9. Ms. Adebule calculated Complainant’s recovery fund award by subtracting

Complainant’s actual damages from the amount left owing on the contract.

10. Ms. Adebule determined that Complainant’s actual damages were equal to the amount that he paid to correct the work outlined in the Directive. Complainant paid Aqua Essence Pools the amount of $37,071.72 to repair the work listed in the Directive. Complainant submitted an invoice and proof of payment for additional pool work performed by Aqua Essence in the amount of $3,700. However, Registrar Investigator Beau Cruz reviewed the invoice and determined that the amount of $3,700 was excessive. Therefore, Ms. Adebule excluded the invoice from her calculation and determined that Complainant’s actual damages were $37,071.72.

11. Ms. Adebule calculated the amount left owing on the contract by

subtracting the amount that Complainant paid to Arizona Pool from the total amount of the contract.

12. Ms. Adebule considered the change order to be a second contract.

Ms. Adebule added the contract amount of $58,500 to the change order amount of $48,650, to determine the total contract amount. See Exhibits 7, 8, and 26. The total amount of the contract was $107,150.

13. Ms. Adebule calculated the amount left owing on the contract by subtracting the amount that Complainant paid to Arizona Pool ($91,244.11) from the total contract amount ($107,150). Ms. Adebule determined that Complainant owed Arizona Pools $15,905.89.

14. Ms. Adebule calculated the Fund award to be issued to Complainant by subtracting the amount left owing on the contract in the amount of $15,905.89 from Complainant’s actual damages in the amount of $37,071.72. Ms. Adebule determined that Complainant should be awarded $21,165.83 from the Fund.

15. Ms. Adebule did not consider Complainant’s payments to NB Custom Metal Works and Juan Lopez Landscaping because those entities were unlicensed contractors at the time that the work was performed and that payments were made.

Ms. Adebule excluded payments made by Complainant to Graham because the work performed by Graham exceeded the scope of the Directive. See Exhibit 17.

16. On February 1, 2021, the Registrar notified Complainant that he would be awarded $21,165.83 from the Fund.

17. Complainant requested a hearing regarding the payout.

18. The matter was referred to the Office of Administrative Hearings for an

evidentiary hearing.

19. On March 11, 2021, the Registrar issued a Notice of Hearing setting

the above-captioned matter for hearing on April 12, 2021, at the Office of Administrative Hearings in Phoenix, Arizona.

20. A hearing was held on April 12, 2021.

21. At hearing, Complainant testified on behalf of himself and submitted

exhibits 1 through 13. The Registrar presented the testimony of Ms. Adebule and submitted exhibits 1 through 28.

22. Ms. Adebule testified regarding her review of the claim and calculation of the award amount.

23. Complainant contended that Arizona Pool had two licenses and he

believed that he could recover a total of $60,000. Complainant reported on the claim that he paid approximately $70,000 to correct the Arizona Pool’s deficient work. Complainant expressed that he believed that all of the contractors that he hired were licensed and the work was necessary. Complainant asserted that the Registrar failed to correctly calculate his award amount.

CONCLUSIONS OF LAW

This matter lies within the Registrar’s jurisdiction.

Ariz. Rev. Stat. § 32-1132.01(B) provides that “[a]n award from the fund is limited to the actual damages suffered by the claimant as a direct result of the contractor's violation but shall not exceed an amount necessary to complete or repair a residential structure or appurtenance within residential property lines. . . .” Respondent bears the burden of proof to establish that the proposed payout from the Fund is incorrect by a preponderance of the evidence.

“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.”

Upon consideration of the evidence presented at hearing, the Administrative Law Judge concludes that Complainant failed to establish that the bid from Graham and the landscaping change order from Arizona Pool were within the scope of the Directive. Complainant failed to provide any legal authority that allows for reimbursements for payments made to unlicensed contractors. Complainant failed to establish that the change order was for any amount less than $48,650, or that he owed any amount less than $48,650 for the change order.

The preponderance of the evidence shows that that the award provided by the Fund is an accurate reflection of Complainant’s actual damages. The award appears to properly remedy the workmanship violations for which Respondent was responsible.

RECOMMENDED ORDER

Based on the foregoing, it is recommended that on the effective date of the Registrar’s final order, Complainant receive a payout from the Residential Contractors’ Recovery Fund in the amount of $21,165.83.

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 28, 2021.

/s/ Velva Moses-Thompson

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors