ALJDEC decisions subject to certification as final

2018A-1529-CHC-ROC · Registrar of Contractors · 2018-09-04

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Doug Hopkins,

COMPLAINANT,

v.

A Plus Pool Service LLC dba,

R and S Pool Repairs,

License No:

224438

RESPONDENT.

No. 2018A-1529-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: August 14, 2018, 8:30 A.M.

APPEARANCES: Complainant Doug Hopkins appeared on his own behalf; no appearance was made on behalf of Respondent

ADMINISTRATIVE LAW JUDGE: Roger A. Geddes

_____________________________________________________________________

FINDINGS OF FACT

Background and Procedure

1. A Plus Pool Service, LLC, dba R and S Pool Repairs (Respondent), is the holder of License Number 224438 issued by the Registrar of Contractors (Registrar).

2. On or about April 3, 2018, Doug Hopkins (Complainant) filed a Complaint against Respondent with the Registrar alleging poor work in connection with a swimming pool renovation at a residence in Mesa, Arizona (“project”).

3. The Registrar performed an inspection of the project on May 7, 2018., and issued a Directive, dated May 9, 2018, requiring Respondent to correct various alleged deficiencies in Respondent’s work by May 26, 2018, as follows:

1. Suction grate on side wall is not secured.

2. Skimmer mouth was broken and damaged during strip out. Was not properly fixed.

3. Spa therapy line was punctured during deck reconstruction. Needs replumbed/fixed.

4. Spa therapy and returns do not have functioning eye outlets/ covers.

5. Main drain covers were not replaced with a debris removal type drain cover, rendering the infloor cleaning system useless. (Determine cause of issue and correct by appropriate means).

6. Proper vgb compliant anti-entrapment debris removal drain covers need to be installed properly. (Provide documentation as to VGB compliance or install the correct VGB compliant covers.)

5. After being informed that no corrective work had been performed, the Registrar then issued a Citation to Respondent, dated May 29, 2018, for the alleged violation of the following:

a. A.R.S. § 32-1154(A)(3) (violation of Arizona Administrative Code Rule 4-9-108 for failure to meet minimum workmanship standards);

b. A.R.S. § 32-1154(A)(22) (failure to perform corrective action without valid justification).

6. The Registrar referred the matter to the Office of Administrative Hearings, an independent state agency, for an evidentiary hearing. The Registrar issued a Notice of Hearing, dated June 19, 2018, setting a hearing for August 14, 2018, at 8:30 A.M.

The Registrar mailed a copy of the Notice of Hearing to Respondent on or about June 19, 2018, at its address of record.

7. The Notice of Hearing informed the parties that “[f]ailure to attend the scheduled hearing is likely to result in an adverse ruling against you.” The Notice of Hearing further advised of the procedure for requesting a continuance of the hearing.

8. At the August 14, 2018 hearing, Complainant Doug Hopkins testified on his own behalf. Mike Crow, the Registrar Investigator (Investigator), testified on behalf of the Registrar. The Tribunal received and admitted Complainant’s exhibit numbers 1 -4.

9. Although the commencement of the hearing was delayed approximately 20 minutes, Respondent did not appear at any time during the hearing through an authorized officer, employee, attorney, or any other person. Consequently, Respondent did not present any evidence to defend its license. Respondent further did not request to appear telephonically nor did it request that the hearing be continued.

10. The Investigator on behalf of the Registrar testified that he was the supervisor of Steve Nelsen, the investigator of this case, who is no longer with the Registrar. Specifically, he testified as to Mr. Nelsen’s involvement and findings supported by Mr. Nelsen’s photographs. He further testified that he conducted a pre-hearing inspection on August 13, 2018.

11. Complainant Doug Hopkins testified that Respondent performed no corrective work and that all of the Directive items still remain. He further testified that Respondent had verbally informed him that he had filed a bankruptcy petition and claimed Respondent had no further responsibility for the swimming pool. However, Complainant stated he was not provided any confirmation of a bankruptcy petition or any indication whether any such filing had been in a corporate or individual capacity.

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 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.

3. 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).

4. 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:

3. Violation of any rule adopted by the registrar.

...

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....

5. 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.”

6. A.R.S. § 32-1154(A)(3). Complainant has presented sufficient evidence to establish that Respondent’s work was not performed in a professional and workmanlike manner in violation of A.R.S. § 32-1154(A)(3). As Respondent did not appear at the hearing, no evidence was presented to rebut Complainant’s evidence.

7. A.R.S. § 32-1154(A)(22). Complainant has also presented sufficient evidence to demonstrate a violation of A.R.S. § 32-1154(A)(22) for the failure on the part of Respondent to complete corrective action. No evidence was presented of any attempt to perform corrective work or of a valid justification for failure to do so.

8. Accordingly Complainant has established that Respondent’s license should be disciplined for a violation of § A.R.S. § 32-1154(A)(3) 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, A Plus Pool Service, LLC’s, dba R and S Pool Repairs, License Number 224438 is suspended for two days.

It is further recommended that the Registrar should require Respondent pay the sum of $250.00 as a civil penalty pursuant to A.R.S. §32-1154(E).

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, September 4, 2018.

/s/ Roger Geddes

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors