ALJDEC decisions subject to certification as final

2019A-04258-CHC-ROC · Registrar of Contractors · 2020-01-27

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Lisa Denice Holland,

COMPLAINANT

Integrity Pools and Spas Inc.,

License No. ROC 173181, 135859,

RESPONDENT

No. 2019A-04258-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: January 7, 2019

APPEARANCES: Complainant Lisa Denice Holland appeared on her own behalf. Respondent Integrity Pools and Spas Inc. did not appear.

ADMINISTRATIVE LAW JUDGE: Tammy L. Eigenheer

_____________________________________________________________________

FINDINGS OF FACT

Integrity Pools and Spas Inc. (Respondent) is the holder of License No. 173181 and 135859 issued by the Arizona Registrar of Contractors (Registrar).

On or about March 9, 2019, Lisa Denice Holland (Complainant) entered into a verbal agreement with Respondent for an outdoor kitchen. Complainant also entered into a verbal agreement for an outdoor gazebo.

On or about August 21, 2019, the Registrar received a Complaint against Respondent from Complainant alleging abandonment with respect to the project.

The Registrar assigned the complaint to Investigator Phil Jaegge. After a jobsite inspection, Investigator Jaegge issued a written directive to Respondent that provided Respondent had until 5:00 p.m. on October 18, 2019, to address the nine items listed in the directive including work that was not done and/or was not done in compliance with the Registrar’s standards.

Following the issuance of the written directive, Respondent made no attempt to contact Complainant regarding the work to be completed. After the deadline in the directive expired, Investigator Jaegge 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)(1); 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 January 7, 2020. The Registrar mailed a copy of the Notice of Hearing to Respondent at its address of record.

A hearing was held on January 7, 2020. Complainant testified on her own behalf and submitted two 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 15 minutes, Respondent did not appear through an authorized member, employee, or attorney. Consequently, Respondent did not present any evidence to defend its license.

Investigator Jaegge testified that Respondent’s license was active when Complainant and Respondent agreed to the terms of the contract, on or about March 9, 2019, but was suspended or revoked when Respondent started work on the project.

Complainant testified that Respondent provided her with some digital renderings of the design, but did not perform any substantial work on the project. Complainant indicated that the outdoor kitchen was supposed to cost $30,000.00 and the gazebo was supposed to cost $15,000.00. Complainant paid Respondent a total of $38,500.00 on the project. Complainant stated she had not had any contact from Respondent since May 2019.

Administrative notice is taken of Respondent’s prior License record on January 26, 2020. Such prior License record reflects that Respondent’s License No. 173181 was first issued on March 29, 2002, and was revoked on April 26, 2019. Such prior License record also reflects that there were six prior complaints resulting in discipline, all resulting in revocation. Such prior License record reflects that Respondent’s License No. 135859 was first issued on June 6, 1998, and was revoked on April 18, 2019. Such prior License record also reflects that there were 15 prior complaints resulting in discipline, 11 of which resulted in revocation; and 3 prior complaints that were resolved or settled.

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 at its address of record was 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).

Respondent’s administratively revoked license does not deprive Complainant of her right to prosecute her complaint or prevent the Registrar from determining the merits of the complaint. See A.R.S. § 32-1154(C).

The evidence established that Respondent submitted a bid for Complainant’s project and did not perform the work in the bid. Accordingly, Complainant established that Respondent abandoned the contract and failed to complete the project in a professional and workmanlike manner in violation of A.R.S. § 32-1154(A)(1) and 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).

Complainant established that she paid Respondent $38,500.00 toward the project and no work was completed.

RECOMMENDED ORDER

Based on the foregoing, it is recommended that on the effective date of the Order, the Registrar shall revoke Respondent’s License Nos. 173181 and 135859.

It is further recommended that the Registrar require Respondent to pay to Complainant the sum of $38,500.00 as restitution pursuant to A.R.S. § 32-1156.01.

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.

-54864001

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-137160-45720000Done this day, January 27, 2020.

/s/ Tammy L. Eigenheer

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors-54864001

001

-137160-45720000