FINACT2019A-01624-CHC-ROC-FinalAgencyAction-6692.pdf

2019A-01624-CHC-ROC · Registrar of Contractors · 2019-12-19

REGISTRAR OF CONTRACTORS OF THE STATE OF ARIZONA

Robert Johnson, Case No. 2019-01624 COMPLAINANT, Docket No. 2019A-01624-CHC-ROC v. Oscar Alfonso Lopez FINAL ADMINISTRATIVE DBA: Aqua Stone Pool Plastering, DECISION AND ORDER License No. ROC 297133,

RESPONDENT.

Under A.R.S. § 41-1092.08(B), the Registrar may review and accept, modify, or reject an administrative law judge’s written decision. If the Registrar modifies or rejects that decision, then the Registrar must provide written justification setting forth the reasons for the modification or rejection of each finding of fact or conclusion of law. REGISTRAR’S ACCEPTANCE In this case, a hearing was held, and the administrative law judge issued a written decision. See Administrative Law Judge Decision, attached. The Registrar reviewed that decision and accepts it. CONCLUSION AND ORDER Because the Registrar has accepted the administrative law judge’s decision, that decision is the final administrative decision in this case and becomes effective on January 25, 2020. IT IS FURTHER ORDERED that Respondent pay a civil penalty in the amount of $500.00 payable to the Registrar on or before 30 days from the effective date of this Order. Payment may be hand-delivered to the Registrar’s physical address or mailed to:

of 2 REGISTRAR OF CONTRACTORS 1700 W. Washington St.– Ste. 105 – Phoenix, AZ 85007-2812 Telephone (602)542-1525 Toll Free (877)692-9762 Lg131 8/19 Registrar of Contractors P.O. Box 6748 Phoenix, Arizona 85505-6748

FINAL NOTES On page 4, line 17 replace “(A)(5)” with “(A)(7)”.

Dated December 16, 2019.

By: /s/ Joseph Citelli Joseph Citelli, Chief Counsel Chief of Legal Department and Recovery Fund Arizona Registrar of Contractors Copy mailed via USPS First Class mail December 16, 2019 to: Respondent Oscar Alfonso Lopez DBA: Aqua Stone Pool Plastering 501 E Riley Dr Avondale, AZ 85323 Complainant Robert Johnson 20617 N 53rd Ave Glendale, AZ 85308 Copy sent electronically this same date to: Respondent at email address on record with the Registrar Complainant at email address on record with the Registrar Office of Administrative Hearings Tammy L. Eigenheer, Administrative Law Judge Case No. 2019-01624/tw

of 2 REGISTRAR OF CONTRACTORS 1700 W. Washington St.– Ste. 105 – Phoenix, AZ 85007-2812 Telephone (602)542-1525 Toll Free (877)692-9762 Lg131 8/19 RECEIVED 12.2.2019 ROC LEGAL

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Robert Johnson, No. 2019A-01624-CHC-ROC COMPLAINANT v. ADMINISTRATIVE LAW JUDGE Oscar Alfonso Lopez, DECISION DBA: Aqua Stone Pool Plastering ROC License: ROC 297133, RESPONDENT

HEARING: November 7, 2019 APPEARANCES: Complainant Robert Johnson appeared on his own behalf. Respondent Oscar Alfonso Lopez, doing business as Aqua Stone Pool Plastering did not appear. ADMINISTRATIVE LAW JUDGE: Tammy L. Eigenheer _____________________________________________________________________ FINDINGS OF FACT 1. Oscar Alfonso Lopez, doing business as Aqua Stone Pool Plastering (Respondent) is the holder of License No. 297133 issued by the Arizona Registrar of Contractors (Registrar). 2. On or about March 12, 2019, Robert Johnson (Complainant) entered into a contract with Respondent to resurface and repair a flagstone patio. 3. On or about April 1, 2019, the Registrar received a Complaint against Respondent from Complainant alleging poor work with respect to the project. 4. The Registrar assigned the complaint to Investigator Lisa Melton. After a jobsite inspection, Investigator Melton issued a written directive to Respondent that provided as follows: After investigation, the Registrar has substantiated that your work fails to meet minimum workmanship standards (see A.A.C. R4-9-108). Failure to comply with this Directive constitutes a violation of A.R.S. § 32-1154(A)(22) and may result in the issuance of a Citation, discipline of your license, and a civil penalty pursuant to A.R.S. § 32-1154(E) of up to $500.00. Failure to comply with this Directive may also be treated as an aggravating factor should the Registrar pursue discipline of your license. You must provide the Registrar with satisfactory written proof of your compliance with this Directive prior to 5:00 p.m. on July 11, 2019. Office of Administrative Hearings 1740 West Adams Street, Lower Level Phoenix, Arizona 85007 (602) 542-9826 RECEIVED 12.2.2019 ROC LEGAL

You are hereby directed to remedy the following violations by the appropriate means: Complaint Item 2: After this repair, all of flagstone was covered with white/light gray grout residue and is not back to the original color as it was before work commenced and as promised in proposal above Investigator’s Observation: Grout residue is apparent as well as areas which appear to have been etched subsequent to grout application. Complaint Item 3: Flagstone was then sealed with grout residue left on the flagstone. Investigator’s Observation: Grout residue is apparent as well as areas which appear to be etched subsequent to grout application. Complaint Item 7: At the present time many cracks and openings have reappeared in the repaired grout. Investigator’s Observation: There are areas with missing grout (openings).

The Registrar has determined that any workmanship violations alleged in the complaint but not listed above are unsubstantiated and do not require corrective action. 5. Following the issuance of the written directive, Respondent made no attempt to contact Complainant regarding the corrective work. After the deadline in the directive expired, Investigator Melton was notified no corrective work had been performed. 6. The Registrar issued a Citation against Respondent, charging possible violations of A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108; and A.R.S. § 32- 1154(A)(22). 7. The Registrar referred the matter to the Office of Administrative Hearings, an independent state agency, for an evidentiary hearing. 8. The Registrar issued a Notice of Hearing, setting a hearing at 1:00 p.m. on October 4, 2019. The Registrar mailed copies of the Notice of Hearing to Respondent at its address of record. 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.” 9. The hearing was continued at Complainant’s request. The Office of Administrative Hearings issued a Minute Entry Continuance to the parties at their addresses of record setting the hearing at 9:00 a.m. on November 7, 2019. RECEIVED 12.2.2019 ROC LEGAL

10. A hearing was held on November 7, 2019. Complainant testified on his own behalf and submitted three exhibits. 11. Respondent did not request to appear telephonically and did not request that the hearing be continued. Although the start of the hearing was delayed 20 minutes, Respondent did not appear through an authorized member, employee, or attorney. Consequently, Respondent did not present any evidence to defend its license. 12. Investigator Melton testified that the directive was mailed and emailed to Respondent, but the Registrar had no contact from Respondent. 13. Complainant testified there was white residue all over the patio after the initial work was done. Respondent then returned and power washed the patio to get the sealer off. A few days later, Respondent returned and power washed the patio again, which resulted in etching. Complainant stated he had two companies offer opinions about the state of the patio and both stated it could not be repaired and would need to be replaced. 14. Administrative notice is taken of Respondent’s prior License record on December 2, 2019. Such prior License record reflects that Respondent’s License No. 297133 was first issued on March 27, 2015, and is active. Such prior License record also reflects that there were no other open or prior complaints against Respondent’s license. CONCLUSIONS OF LAW 1. This matter lies within the Registrar’s jurisdiction. See A.R.S. § 32-1101 et seq. 2. The copy of the Notice of Hearing that the Registrar mailed to Respondent and the Minute Entry Continuance that the Office of Administrative Hearings mailed to Respondent at its address of record were reasonable and Respondent is deemed to have received notice of the hearing. A.R.S. §§ 41-1092.04 and 41-1092.05(D). 3. Complainant bears the burden of proof to establish Respondent’s statutory violations by a preponderance of the evidence. See A.R.S. § 41-1092.07(G)(2); A.A.C. R2- 19-119(A) and A.A.C. 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).

RECEIVED 12.2.2019 ROC LEGAL

4. The evidence established that Respondent’s work was not in conformity with the Registrar’s standards. Therefore, Complainant established that Respondent did not complete the project in a workmanlike manner in violation of A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108.1 5. The evidence established that Respondent did not attempt to complete the corrective work following the Directive being issued. Therefore, Complainant established that Respondent failed to take appropriate corrective action following a written directive from the Registrar in violation of A.R.S. § 32-1154(A)(22).2 RECOMMENDED ORDER Based on the foregoing, it is recommended that on the effective date of the Order, the Registrar shall suspend Respondent’s License No. 297133 for a period of five days. It is further recommended that the Registrar require Respondent to pay the sum of $500.00 as a civil penalty pursuant to A.R.S. § 32-1154(E). It is further recommended that if Respondent fails to pay the entire amount of the civil penalty on or before thirty days following the effective date of the Registrar’s final order, the Registrar revoke Respondent’s license, effective on such deadline date. No future license shall be issued to any entity consisting of persons associated with Respondent, as defined in A.R.S. § 32-1101(A)(5), unless Respondent tenders payment of any outstanding prior civil penalty. 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, December 2, 2019.

/s/ Tammy L. Eigenheer Administrative Law Judge A.R.S. § 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.” A.A.C. 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.” 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.” RECEIVED 12.2.2019 ROC LEGAL

Transmitted electronically to: Jeffrey Fleetham, Director Registrar of Contractors