ALJDEC decisions subject to certification as final

2019A-01411-CHC-ROC · Registrar of Contractors · 2019-08-12

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: July 26, 2019, at 1:00 a.m. APPEARANCES: Michael James Erickson was represented by David E. Ward, Esq., Ward Law Offices, PLLC; Integrity Pools and Spas Inc. (“Respondent”) failed to appear. ADMINISTRATIVE LAW JUDGE: Diane Mihalsky _____________________________________________________________________

FINDINGS OF FACT 1. On or about June 6, 1998, the Arizona Registrar of Contractors (“the Registrar”) issued License No. ROC 135859 for General Residential B-5 General Swimming Pool Contracting to Respondent. On or about March 29, 2002, the Registrar issued License No. ROC 173181 for Specialty Dual CR-21 Hardscaping and Irrigation Systems to Respondent. Respondent’s address of record is 41704 N. La Cantera Dr., Anthem, Arizona 85086-1944. 2. On or about March 29, 2019, Complainant filed a complaint with the Registrar against Respondent, alleging that on November 1, 2014, Respondent had contracted to construct a paver driveway, front and backyard landscaping, a pool, and a block wall at Complainant’s house at 16234 E. Gamble Ln., Scottsdale, Arizona 85262, but had stopped work on the project in December 2018. Complainant stated the work Respondent had performed was deficient and that Respondent had abandoned the project. 3. The complaint was assigned to the Registrar’s Investigator David Fagerburg for investigation. Investigator Fagerburg conducted a jobsite inspection, which Respondent did not attend. 4. On April 30, 2019, Investigator Fagerburg on behalf of the Registrar issued a directive that required Respondent to remedy certain work by appropriate means, in relevant part as follows: Complaint Item 1: Paver driveway - never completed, poor quality

Complaint Item 2: Front yard landscape – never completed, dead plants, leaks. Irrigation system only

Complaint Item 3: Back yard landscape - never started

Complaint Item 4: Pool – very poor tile work, never completed, no pebble.

Complaint Item 5: Block wall never completed, no stucco

The deadline for Respondent to comply with the directive was May 17, 2019, at 5:00 p.m. 5. After Respondent failed to comply with the directive, Investigator Fagerburg referred the matter to the Registrar’s Legal Department. On May 22, 2019, the Registrar issued a citation against Respondent’s License Nos. ROC 135859 and ROC 173181 for violations of A.R.S. § 32- 1154(A)(1), A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108, and A.R.S. § 32-1154(A)(22). 6. The Registrar sent the citation to Respondent’s address of record. Respondent filed a timely written answer to the citation. 7. The Registrar referred Case No. 2018-04506 to the Office of Administrative Hearings (“OAH”) for an evidentiary hearing. On June 14, 2019, the Registrar issued a Notice of Hearing, setting a hearing on July 26, 2019. The Registrar sent the Notice of Hearing to Respondent at its address of record. 8. A hearing was held on July 26, 2019. Complainant testified and submitted one exhibit. Investigator Fagerburg also testified. 9. Respondent did not request to appear telephonically at the hearing. Although the beginning of the hearing was delayed fifteen minutes to give Respondent additional time, it did not appear, through an authorized officer, employee, or attorney. Consequently, Respondent did not present any evidence to defend its license. 10. Investigator Fagerburg testified consistently with his jobsite inspection notes and the directive. The pavers for the driveway and the walkways leading off the driveway were not complete. The fence was not complete. The pool did not have gunite. The tile work on the pool was poor and not level, especially in the area of a built-in table. 11. Investigator Fagerburg testified that Complainant informed him that Complainant had someone else install the pool equipment and that, although Respondent was supposed to install a putting green and barbeque, it had not started these projects. Investigator Fagerburg identified the photographs that he took at the jobsite inspection.[1] 12. Pursuant to A.A.C. R4-9-117, administrative notice is taken of Respondent’s prior disciplinary history on the Registrar’s public website. On this date, Respondent’s License No. ROC 135859 was revoked, with 12 prior cases that resulted in discipline. License No. ROC 173181 also was revoked, with 6 prior cases that resulted in discipline. CONCLUSIONS OF LAW 1. The Notice of Hearing that the Registrar mailed to Respondent at its address of record was reasonable and it is deemed to have received notice of the hearing.[2] 2. The revoked status of Respondent’s licenses does not deprive the Registrar of jurisdiction to adjudicate Complainant’s complaint or deprive Complainant of his right to prosecute his complaint.[3] This matter lies within the Registrar’s jurisdiction.[4] 3. Complainant bears the burden to establish grounds for suspension or revocation of Respondent’s contractor’s licenses by a preponderance of the evidence.[5] “A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.”[6] 4. Complainant established that Respondent failed to complete and abandoned the project that it contracted to perform at Complainant’s house. Complainant therefore established grounds to suspend or revoke Respondent’s contractor’s licenses under A.R.S. § 32-1154(A)(1).[7] 5. Complainant established that Respondent performed poor work on the pool tile and front yard landscaping. Complainant therefore established grounds to suspend or revoke Respondent’s contractor’s licenses under A.R.S. § 32-1154(A)(3),[8] namely A.A.C. R4-9-108.[9] 6. Complainant established that Respondent failed to comply with the April 30, 2019 directive by repairing and completing its work. Complainant therefore established grounds to suspend or revoke Respondent’s contractor’s licenses under A.R.S. § 32-1154(A)(22).[10]

7. With respect to the penalty, Respondent’s failures to attend the jobsite inspection, to make any attempt to comply with the directive, or to attend the hearing indicate that, at this time, Respondent cannot be regulated. / / / / RECOMMENDED ORDER In light of the foregoing facts and conclusions of law, IT IS ORDERED revoking Respondent Integrity Pools and Spas Inc.’s License Nos. ROC 135859 and ROC 173181 on the effective date of the final order in this matter. 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 five days from the date of that certification. Done this day, August 12, 2019.

/s/ Diane Mihalsky Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director Registrar of Contractors ----------------------- [1] See Complainant’s Exhibits 1 – 10. [2] See A.R.S. §§ 41-1092.04; 41-1092.05(D). [3] See A.R.S. § 32-1154(D). That statute provides that “[t]he 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 licensee, or to render a decision suspending or revoking such a license . . . .” [4] See A.R.S. § 32-1154(A). [5] See A.R.S. § 41-1092.07(G)(2); A.A.C. R2-19-119(B)(1); see also Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952). [6] Morris K. Udall, Arizona Law of Evidence § 5 (1960). [7] A.R.S. § 32-1154(A)(1) includes among the grounds to suspend or revoke a contractor’s license, “[a]bandonment of a contract or refusal to perform after submitting a bid on work without legal excuse for the abandonment or refusal.” [8] A.R.S. § 32-1154(A)(3) includes among the grounds to suspend or revoke a contractor’s license, “[f]ailure in any material respect to comply with this chapter.” [9] A.A.C. R4-9-108(A) states that “[a] contractor shall perform all work in a professional and workmanlike manner.” [10] A.R.S. § 32-1154(A)(22) includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, “[f]ailure 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.”

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Office of Administrative Hearings 1740 West Adams Street, Lower Level Phoenix, Arizona 85007 (602) 542-9826