ALJDEC decisions subject to certification as final

2019A-01624-CHC-ROC · Registrar of Contractors · 2019-12-02

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Robert Johnson,

COMPLAINANT

v.

Oscar Alfonso Lopez,

DBA: Aqua Stone Pool Plastering

ROC License: ROC 297133,

RESPONDENT

No. 2019A-01624-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

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

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).

On or about March 12, 2019, Robert Johnson (Complainant) entered into a contract with Respondent to resurface and repair a flagstone patio.

On or about April 1, 2019, the Registrar received a Complaint against Respondent from Complainant alleging poor work with respect to the project.

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.

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.

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.

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).

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, 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.”

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.

A hearing was held on November 7, 2019. Complainant testified on his own behalf and submitted three exhibits.

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.

Investigator Melton testified that the directive was mailed and emailed to Respondent, but the Registrar had no contact from Respondent.

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.

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

This matter lies within the Registrar’s jurisdiction. See A.R.S. § 32-1101 et seq.

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).

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).

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.

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).

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

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors