ALJDEC decisions subject to certification as final
2017A-5539-CHC-ROC · Registrar of Contractors · 2018-03-20
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
Avelina Lamb,
COMPLAINANT,
v.
Integrated Land Solutions LLC,
DBA: ILS Contracting,
License No: 306043
RESPONDENT.
No. 2017A-5539-CHC-ROC
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: February 28, 2018, 8:30 A.M.
APPEARANCES: Avelina Lamb, Complainant, appeared on her own behalf; Armando Perez, owner of Respondent, appeared on behalf of Respondent. Matt Gunstra appeared on behalf of Registrar of Contractors
ADMINISTRATIVE LAW JUDGE: Roger A. Geddes
_____________________________________________________________________
FINDINGS OF FACT
Background and Procedure
1. Integrated Land Solutions LLC, dba ILS Contracting (Respondent), is the holder of License Number 306043 issued by the Registrar of Contractors (Registrar).
2. On or about November 2, 2017, Avelina Lamb (Complainant), filed a Complaint against Respondent with the Registrar alleging abandonment in connection with installation of swimming pool by Respondent at Complainant’s residence in Gilbert, Arizona.
3. After the Registrar’s inspection of the job site on November 28, 2017, the Registrar issued a Directive, dated November 30, 2017, requiring Respondent to correct various alleged deficiencies in Respondent’s work by December 18, 2017, as follows:
1. Respondent shall complete the project per written contract, executed change orders and verbal agreements. Residential construction is outside the scope of Respondent’s license. SEE HIGHLIGHTED SECTION BELOW REGARDING OUT OF SCOPE WORK.
4. When foregoing item was not corrected by the deadline, the Registrar then issued a Citation to Respondent, dated December 18, 2017, for the alleged violation of the following:
a. A.R.S. § 32-1154(A)(3) (violation of Arizona Administrative Code Rule 4-9-108(A) for failure to perform all work in a professional and workmanlike manner);
b. A.R.S. § 32-1154(A)(9) (aiding or abetting an unlicensed person to evade chapter or knowingly or recklessly combining with an unlicensed person);
c. A.R.S. § 32-1154(A)(16) (contracting beyond the scope of a license);
d. A.R.S. § 32-1154(A)(22) (failure to perform corrective action without valid justification).
5. The Registrar referred the matter to the Office of Administrative Hearings, an independent state agency, for an evidentiary hearing. An evidentiary hearing was held on February 28, 2018, at 8:30 A.M. At the hearing, Complainant testified on her own behalf and presented the testimony of Chad Brandt; Armando Perez, owner of Respondent, testified on behalf of Respondent. Matt Gunstra, the Registrar Investigator (Investigator), testified on behalf of the Registrar.
6. The Investigator on behalf of the Registrar testified as to his communications with Complainant and Respondent, his inspections of the job site, and the Directive issued by the Registrar as a result of his observations from his inspection. Specifically, he testified that he had observed that a hole was dug and only the rebar and plumbing was installed to date. He testified that that Amando Perez informed him that he had hired Alan Stillwell of Anything for Pools, an unlicensed contractor, as a subcontractor to construct the subject pool, who had abandoned the job.
7. The Investigator further testified that Respondent had performed the residential work under its Class B-2 commercial license, and did not have a residential license as required. Due to the fact that Respondent did not have a residential license, the Investigator indicated that Respondent was not permitted to do any corrective work and could only resolve this matter with a financial settlement with Complainant.
8. Complainant Avelina Lamb testified that she had paid Respondent $14,600 of the $17,000 contract amount but that most of the pool installation had not been completed. She stated she had obtained five or six estimates from contractors to complete the work but had yet to reach a financial resolution with Respondent.
9. Chad Brandt on behalf of Complainant testified that he checked with the City of Gilbert and was told that Respondent did not obtain a building permit for the pool. He also testified he believed the rebar was sized incorrectly and the plumbing not properly installed. He indicated three bids had been submitted to Respondent, but that there had yet to be a financial resolution.
10. Armando Perez on behalf of Respondent testified that he had hired Alan Stillwell from Anything for Pools as a subcontractor to install the pool, but that he did not know he was unlicensed when he hired him. He further testified that Mr. Stillwell abandoned the job and that Respondent was attempting to reach a financial resolution with Complainant.
11. Pursuant to Arizona Administrative Code Rule 4-9-117, administrative notice is taken of the Registrar’s public website. On December, 5, 2017, Respondent’s License No. 306043 was suspended for lack of a bond and still remains suspended. The administratively suspended 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 suspended status of Respondent’s license does not deprive Complainant of the right to prosecute a Complaint against Respondent or prevent the Registrar from determining the merits of Complainant’s complaint. See A.R.S. § 32-1154(D) (“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 Arizona Administrative Code Rule 2-19-119.
4. To warrant such sanctions by the Registrar, Complainant 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. A.R.S. § 32-1154(A) includes in pertinent part among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, any of the following acts:
3. Violation of any rule adopted by the registrar.
...
9. Aiding or abetting a licensed or unlicensed person to evade this chapter, knowingly or recklessly combining or conspiring with a licensed or unlicensed person, allowing one's license to be used by a licensed or unlicensed person or acting as agent, partner, associate or otherwise of a licensed or unlicensed person with intent to evade this chapter.
...
16. Knowingly contracting beyond the scope of the license or licenses of the licensee.
...
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. As it relates to A.R.S. § 32-1154(A)(3) concerning a violation of any rule adopted by the Registrar, Arizona Administrative Code Rule 4-9-108(A), provides that “A contractor shall perform all work in a professional and workmanlike manner.”
7. Complainant has presented sufficient evidence to establish cause to discipline Respondent’s contractor’s license under A.R.S. § 32-1154(A)(3) for Respondent’s failure to perform the work in a professional and workmanlike manner. Although Respondent was not cited for abandonment of a contract under A.R.S. § 32-1154(A)(1), the Tribunal finds that Respondent’s failure to complete the work constitutes failure to perform the work in a professional and workmanlike manner.
8. Complainant has presented sufficient evidence to establish cause to discipline Respondent’s contractor’s license under A.R.S. § 32-1154(A)(9) for aiding or abetting a licensed or unlicensed person to evade this chapter or knowingly or recklessly combining or conspiring with an unlicensed person. Respondent submitted that it did not know the subcontractor it hired was an unlicensed contractor at the time of hiring. However, given the broad scope of the hired contractor’s work, the Tribunal finds that Respondent’s failure to confirm the hired contractor’s license status before authorizing him to proceed with the work constitutes recklessly combining with an unlicensed person.
9. Complainant has presented sufficient evidence to establish cause to discipline Respondent’s contractor’s license under A.R.S. § 32-1154(A)(16) for knowingly contracting beyond the scope of its license. Respondent offered no defense as to why it had undertaken a residential project under a commercial license.
10. Complainant has presented sufficient evidence to establish cause to discipline Respondent’s contractor’s license under A.R.S. § 32-1154(A)(22) for the failure on the part of Respondent to undertake corrective action. Respondent did not have the proper license to permit it to even undertake corrective action. The lack of a proper license does not constitute a legal justification for failure to undertake corrective action.
11. Complainant has established that Respondent’s license should be disciplined for a violation of § 32-1154(A)(3), § 32-1154(A)(9), A.R.S. § 32-1154(A)(16), and A.R.S. § 32-1154(A)(22).
RECOMMENDED ORDER
Based on the foregoing, it is recommended that on the effective date of this Order, Respondent Integrated Land Solutions, LLC, dba ILS Contracting, License Number 306043 is revoked until an appropriate bond is posted, and if such bond is posted by the effective date of this Order, is suspended for five days.
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, March 20, 2018.
/s/ Roger Geddes
Administrative Law Judge
Transmitted electronically to:
Jeffrey Fleetham, Director
Registrar of Contractors