ALJDEC decisions subject to certification as final

2019A-01416-CHC-ROC · Registrar of Contractors · 2020-01-30

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Dusko Jovicic,

COMPLAINANT

Bravado Pools and Landscape LLC,

ROC License: ROC 322639,

RESPONDENT

No. 2019A-01416-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: January 10, 2020.

APPEARANCES: Dusko Jovicic, Complainant, appeared on his own behalf. Brian Walters, appeared on behalf of Bravado Pools and Landscape LLC, Respondent.

ADMINISTRATIVE LAW JUDGE: Antara Nath Rivera.

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FINDINGS OF FACT

On November 16, 2018, the Registrar of Contractors (ROC) issued License No. 322639 for General Residential B-4 General Residential Engineering Contractor to Bravado Pools and Landscape LLC (Respondent). Respondent’s address of record for the license is 2337 North Acacia Circle, Mesa, AZ 85213. Brian Walters is listed on the license as the Manager and Qualifying Party.

Administrative Notice is taken of Respondent’s prior License record, for License No. 322639, as reflected on the ROC’s public website on January 10, 2020. Such prior License record reflects that Respondent’s license is currently active. The license has one resolved/settled case. The record also reflects that there are four open complaints against Respondent’s license, one of which is presumed to be related to this matter. Respondent has an active $9,000.00 surety bond issued through Merchants’ Bonding Co. effective July 17, 2019.

On or about December 24, 2018, Dusko Jovicic (Complainant) entered into a written contract with Respondent whereby Respondent was to install a swimming pool at 8600 East San Ardo Drive, Scottsdale, AZ 85258 for $71,000.00. The project started on or about December 24, 2018. The parties verbally agreed that the pool would be completed by January 30, 2019. Complainant paid Respondent a total of $53,100.00.

On or about March 21, 2019, the ROC received a Complaint against Respondent from Complainant alleging abandonment. Complaint indicated that Respondent’s failure to complete the project resulted in a loss of rental income.

ROC Investigator Dennis Bierma (Investigator Bierma) was subsequently assigned to the case.

On or about April 1, 2019, the ROC issued a Jobsite Inspection Notification letter to the parties, provided proper notice to them, and advised that an onsite review would be conducted at the project site by an ROC investigator on July 5, 2019, at 10:00 a.m. The Jobsite Inspection was rescheduled to October 1, 2019, at 11:30 a.m.

On or about October 1, 2019, Investigator Bierma reviewed the work completed by Respondent, to date, and took about nine photographs.

On or about September 16, 2019, Investigator Bierma issued a Directive From The Registrar (Directive) to Respondent because he substantiated Complainant’s allegation that Respondent’s work failed to meet minimum ROC workmanship standards. Specifically, Respondent was ordered to remediate Complaint items 1-5 via appropriate means. Respondent was put on notice that he had until October 11, 2019, to notify the ROC of its compliance with the corrective order or face discipline pursuant to Ariz. Admin. Code R4-9-108, and Ariz. Rev. Stat. §§ 32-1154(A)(22) and 32-1154(E).

On October 28, 2019, the ROC issued a Citation to Respondent for alleged violations of Ariz. Rev. Stat. §§ 32-1154(A)(3) and 32-1154(A)(22), and Ariz. Admin. Code R4-9-108. Respondent was given until November 14, 2019, to respond with its Answer or face discipline pursuant to Ariz. Rev. Stat. §§ 32-1154(A)(22) and 32-1155.

On or about November 14, 2019, Respondent filed an Answer. In the Answer Respondent indicated that its license should not be suspended or revoked and requested an administrative hearing.

On November 15, 2019, the ROC referred this matter to the Office of Administrative Hearings, an independent state agency, for an evidentiary hearing on January 10, 2020.

HEARING EVIDENCE

At the hearing, Investigator Steven Nelson (Investigator Nelson), Assistant Chief at the ROC, testified on behalf of Investigator Bierma. Investigator Nelson testified consistently with Investigator Bierma’s investigative reports and stated that he did not conduct a prehearing inspection to determine if any corrective work was completed per the Directive.

Complainant presented the testimony of Cheri Reeves. Ms. Reeves testified that she was unaware of any settlement agreement between the parties. In addition, Ms. Reeves was an investor of Respondent but never an owner or managing member.

Complainant testified on his own behalf and stated that he and Respondent entered into a contract whereby Respondent agreed to build a swimming pool for Complainant. This contract was created pursuant to a settlement agreement between him and Respondent. The purpose of the settlement agreement was to satisfy Respondent’s debt to Complainant. Complainant initially paid Respondent $17,900.00.

On an unspecified date, Complainant noticed that Respondent stopped working on the pool. Soon thereafter, Complainant learned that Ms. Reeves stole money from Respondent. Complainant learned that Respondent was unable to finish the pool because he did not have any money due to Ms. Reeves’ actions. Despite that fact, Complainant paid Respondent an additional $33,000.00 to finish his pool as well as help Respondent finish pools for other clients.

As of November 2019, the pool was not complete and Complainant lost money rental income because he used this residence as an AIRBNB. Complainant was unable to provide an explanation for why he failed to set up the propane gas for the barbeque. Complainant argued that Ms. Reeves was liable for Respondent’s financial situation and abandonment. Complainant stated that he did not want Respondent punished, suspended, or revoked. Complainant wanted Ms. Reeves to be punished for this situation.

Brian Walters, Respondent’s owner, testified on behalf of Respondent. Mr. Walters agreed with Complainant with respect to the facts that led to building the pool as well as the financial issues. Mr. Walters acknowledged that he and Complainant were in business together and that he used Complainant as a “leverage for payment.”

Mr. Walters argued that he was unable to finish the barbeque door because Complainant did not set up the propane gas. Once the propane was set up, Mr. Walters would be able to install the safety barrier and pool equipment. Without the safety barrier, the pool would not pass the inspection. Mr. Walters argued that he was legally unable to proceed with the work without the propane set up. The only corrective work Mr. Walters performed was the removal of dirt.

CONCLUSIONS OF LAW

The ROC has jurisdiction over this matter pursuant to Ariz. Rev. Stat. §§ 32-1101 et seq. and 32-1154(A). The matter was properly brought before the Office of Administrative Hearings pursuant to Ariz. Rev. Stat. §§ 41-1092 et seq.

The ROC may resolve contractual disputes if such resolution in ancillary to its regulatory mission and may penalize a contractor’s license by ordering payment of restitution if a proven statutory violation was not remedied by corrective action.

The purpose of the ROC’s licensing statutes is to protect the public from unscrupulous, unqualified, and financially irresponsible contractors.

Complainant bears the burden of proof to establish Respondent’s statutory violations by a preponderance of the evidence. See Ariz. Rev. Stat. § 41-1092.07(G)(2); Ariz. Admin. Code R2-19-119(A) and Ariz. Admin. Code 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).

Ariz. Rev. Stat. § 32-1154(A)(3) includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, “[v]iolation of any rule adopted by the registrar.”

Ariz. Admin. Code R4-9-108 requires that “[a]ll work shall be performed in a professional and workmanlike manner” and that “[a]ll work shall be performed in accordance with any applicable building codes and professional industry standards.”

Ariz. Rev. Stat. § 32-1154(A)(22) holds, in pertinent part, that “[a] holder of a license may not fail to take appropriate corrective action to comply with this chapter or 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. The ROC has the authority to issue license discipline under this provision, including summary suspension, revocation, or imposing a civil penalty or recovery fund award.”

The evidence clearly established that Respondent did not abandon the project, as Complainant alleged in the Complaint. There is evidence that Respondent performed work below industry standards when it stopped work on the pool before its completion. Complainant established that Respondent was unable to finish the pool because Respondent did not have money to finish the project. However, Complainant was upset with Ms. Reeves because she stole money from Respondent.

Respondent established that it was unable to complete the pool without the proper propane set up. The evidence showed that Respondent was unable to finish the contract because of Complainant’s failure to cooperate. Thus, Complainant failed to prove that Respondent performed poor work that fell below industry standards in violation of Ariz. Rev. Stat. § 32-1154(A)(3).

The evidence showed that Respondent was in compliance with the Directive when it removed the dirt. Respondent also established that it was unable to complete the remainder of the corrective work due to Complainant’s refusal to let set up the propane. The ROC does not expect or demand perfection from licensees. Because Respondent could not legally move forward with the completion of the pool, Respondent cannot properly be disciplined for the violation of Ariz. Rev. Stat. § 32-1154(A)(22) unless it is given the opportunity to correct said issue.

RECOMMENDED ORDER

Based on the foregoing,

IT IS RECOMMENDED that on the effective date of the ROC’s final order in this matter, ROC close as dismissed Complainant Dusko Jovicic’s complaint in Case No. 2019A-01416 against Respondent Bravado Pools and Landscape LLC License No. 322639.

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, January 29, 2020.

/s/ Antara Nath Rivera

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors

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