ALJDEC decisions subject to certification as final

2020A-00583-CHC-ROC · Registrar of Contractors · 2020-07-10

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Jana Kay Martin,

COMPLAINANT,

v.

Gomez Pools & Services LLC,

License No. ROC 316303,

RESPONDENT.

No. 2020A-00583-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: June 25, 2020 at 1:00 PM.

APPEARANCES: Jana Kay Martin (“Complainant”) appeared with Mark Martin and Ruben Perez as witnesses. Jerry Gomez appeared on behalf of Gomez Pools & Services LLC (“Respondent”) with David Gomez as a witness.

ADMINISTRATIVE LAW JUDGE: Jenna Clark.

_____________________________________________________________________

Having heard the evidence and testimony and having considered the record in this matter, the undersigned Administrative Law Judge hereby makes the following Findings of Fact and Conclusions of Law and issues the following Recommended Order to the Director of the Arizona Registrar of Contractors (“Registrar”).

FINDINGS OF FACT

Background and Procedure

On November 09, 2017, the Registrar issued License No. 316303 for general dual KA-5 swimming pool contracting to Respondent. Respondent’s address of record for the license is 1076 S 4th Ave Yuma, AZ 85364-3808. Jerry Gomez is listed on the license as the Qualifying Party and Member.

Pursuant to Ariz. Admin. Code R4-9-117 Administrative Notice is taken of Respondent’s prior license record, for ROC License No. 316303, as reflected on the Registrar’s public website on June 25, 2020. Such prior license record reflects that Respondent’s license is active and currently renewed through November 30, 2021. The license has not been previously disciplined. The record reflects that there are four open complaints against Respondent’s license, one of which is presumed to be related to this matter. Respondent has a $14,000.00 surety bond for the license issued through American Contractors Indemnity Company, effective October 15, 2019.

On or about February 03, 2020, the Registrar received a complaint filed by Complainant alleging abandonment and poor workmanship of a residential in-ground pool project, including excavation, decking, light installation, and step/bench installation. Complainant included copies of the underlying contract and proof of payments.

On February 19, 2020, the Registrar issued a Jobsite Inspection Notification letter to the parties, advising that an onsite review would be conducted at the project site by an investigator on March 11, 2020, at 10:30 a.m.

On March 11, 2020, Registrar investigator Ruben Perez (“Investigator Perez”) inspected the work that had been done on the project to date and took 84 photographs of the project. Both parties were present. When he was finished, Investigator Perez drafted Jobsite Inspection Notes.

On March 18, 2020, Investigator Perez issued a Directive from the Registrar (“Directive”) to Respondent because he substantiated 8 of Complainant’s 23 allegations that the work Respondent had performed on the project failed to meet minimum workmanship standards. Specifically, Respondent was instructed to remediate complaint items #5, #8b, #9, #11, #13, #15, #18, and #23 by “appropriate means.” Respondent was put on notice that he had until 5:00 p.m. on April 03, 2020, to notify the Registrar of its compliance with the Directive or face discipline pursuant to Ariz. Rev. Stat. §§ 32-1154(A)(3), namely Ariz. Admin. Code R4-9-108; 32-1154(A)(22); and 32-1154(E).

On April 14, 2020, Investigator Klein issued a Warning Letter to Respondent to advise that his contract with Complainant did not meet statutory minimum elements in violation of Ariz. Rev. Stat. § 32-1158(A). Respondent was further advised that failure to comply with Ariz. Rev. Stat. § 32-1158(A) was a violation of Ariz. Rev. Stat. § 32-1154(A)(12), which could result in discipline against Respondent’s license including suspension or revocation.

On April 14, 2020, Investigator Perez issued a second Warning Letter to Respondent to advise that Respondent’s contract with Complainant was missing at least one element in violation of Ariz. Rev. Stat. § 32-1158.01. Respondent was further advised that failure to comply with Ariz. Rev. Stat. § 32-1158.01 was a violation of Ariz. Rev. Stat. § 32-1154(A)(12), which could result in discipline against Respondent’s license including suspension or revocation.

On April 08, 2020, Investigator Perez issued a Compliance Jobsite Inspection Notification letter to the parties, advising that an onsite review would be conducted at the project site by an investigator on April 21, 2020, at 10:30 a.m.

On April 21, 2020, Investigator Perez conducted a compliance jobsite inspection whereby he took 5 photos. Both parties were present. When he was finished, Investigator Perez drafted Compliance Jobsite Inspection Notes wherein he noted that Respondent failed to timely comply with the Registrar’s Directive as no remediations had been attempted.

On April 22, 2020, Investigator Perez escalated Complaint 2019-00583 to the Registrar’s legal department with citation recommendations.

On April 24, 2020, the Registrar issued a Citation to Respondent for alleged violations of Ariz. Rev. Stat. §§ 32-1154(A)(3); a violation of Ariz. Admin. Code R4-9-108, 32-1154(A)(12); specifically 32-1158, and 32-1154(A)(22). Respondent was given until May 11, 2020, to respond with its Answer or face discipline pursuant to Ariz. Rev. Stat. § 32-1155(C).

On May 09, 2020, the Registrar received Respondent’s Answer whereby Respondent alleged that Complainant had prevented Respondent from accessing the project site and performing any remediations. Respondent further alleged that Complainant failed to pay the contract in full.

On May 11, 2020, the Registrar referred this matter to the Office of Administrative Hearings (“OAH”), an independent state agency, for an evidentiary hearing on June 25, 2020. Per the Notice of Hearing the issue to be determined is whether the Registrar has cause to discipline Respondent’s license based on the following charges:

Charge 1: A violation of Rule 4-9-108, titled “Minimum Construction Standards,” in the Arizona Administrative Code, and thereby of A.R.S. § 32-1154(A)(3).

Charge 2: A violation of A.R.S. § 32-1154(A)(12) (“Failure in any material respect to comply with this chapter; Namely A.R.S. § 32-1158.)

Charge 3: A violation of A.R.S. § 32-1154(A)(22) (“Failure 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. 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.”).

Hearing Evidence

Complainant testified on her own behalf and called Investigator Perez and Mark Martin as a witnesses. Jerry Gomez testified on behalf of Respondent. The Registrar’s agency file and Notice of Hearing were admitted into the record as their own exhibits. The substantive facts are as follows:

Complainant owns residential property located at 12493 S Ironwood Drive Yuma AZ 85367.

On or about August 30, 2019, the parties entered into a contractual agreement whereby Complainant agreed to pay Respondent $31,500.00 in exchange for Respondent installing an in-ground pool in Complainant’s backyard. On or about December 12, 2019, the parties agreed to have Respondent install a heating element in the pool for an additional $3,300.00.

On November 01, 2019, work on the project commenced.

On December 27, 2019, Complainant tendered a check for $1,800.00 to Respondent for the project. Complainant paid an additional $28,625.00 to Respondent on the contract.

On January 31, 2020, local authorities issued building permit #B19-0855 for the project. Work on the projected ceased the same day.

Respondent was present on March 11, 2020, for Investigator Perez’s jobsite inspection.

The compliance deadline for the Registrar’s March 18, 2020, Directive was April 03, 2020. Complainant was specifically instructed by Investigator Perez to grant Respondent access to the project site to perform repairs outlined in the Directive. Respondent did not comply because Complainant refused to grant Respondent access to the project site.

Specifically, Complainant demanded that Respondent provide a written schedule that detailed the days and times Respondent would perform corrective work. Complainant also demanded that the schedule include the name(s) of the employee(s) set to perform the remediations, and an affirmation that Respondent would cover the cost of any damage that occurred during the course of repairs. Respondent agreed.

On March 23, 2020, Respondent presented Complainant with a written remediation agreement. Complainant rejected the document for lack of specificity and asked Respondent to submit another draft. Respondent agreed.

On March 28, 2020, Respondent presented Complainant with a second draft of the remediation agreement. Complainant rejected the document for lack of specificity and asked Respondent to submit another draft. Respondent agreed.

On April 01, 2020, Respondent presented Complainant with a third draft of the remediation agreement. Complainant rejected the document for lack of specificity and asked Respondent to submit another draft. Respondent did not comply with Complainant’s request.

There was no additional communication between the parties through and up to April 03, 2020.

In closing, Complainant argued that disciplinary action should be taken against Respondent’s contracting license because Respondent had not fulfilled their contract. Complainant noted that, overall, she was unsatisfied with Respondent’s workmanship on their project.

In closing, Respondent argued that it made no less than three attempts to comply with Complainant’s written remediation agreement request and access the jobsite to make repairs as directed by the Registrar, but were prohibited by Complainant. Respondent further argued that, but for Complainant’s refusal to grant Respondent access to the jobsite, Respondent would have been able to timely make the remediations necessary to comply with the Registrar’s Directive. Respondent opined that because the pool had passed inspection, its work on the project clearly met minimum workmanship standards.

CONCLUSIONS OF LAW

The Registrar has jurisdiction over this matter pursuant to Ariz. Rev. Stat. §§ 32-1101 et seq. and 32-1154(A). The matter was properly brought before OAH pursuant to Ariz. Rev. Stat. §§ 41-1092 et seq.

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

The Registrar 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.

Complainant bears the burden of proof to establish cause to discipline Respondent’s license by a preponderance of the evidence. Respondent bears the burden to establish factors in mitigation of the penalty and affirmative defenses by the same evidentiary standard.

“A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.” A preponderance of the evidence is “[t]he greater weight of the evidence, not necessarily established by the greater number of witnesses testifying to a fact but by evidence that has the most convincing force; superior evidentiary weight that, though not sufficient to free the mind wholly from all reasonable doubt, is still sufficient to incline a fair and impartial mind to one side of the issue rather than the other.”

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) provides, 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 Registrar has the authority to issue license discipline under this provision, including summary suspension, revocation, or imposing a civil penalty or recovery fund award.”

The material facts in this case are clear.

It is undisputed that Complainant substantially paid Respondent on the underlying project and that Respondent did not complete the project per contract. It is further undisputed that the Registrar’s post-investigative Directive required Respondent’s full compliance by April 03, 2020, and that Respondent did not timely comply.

Therefore, the only remaining issue to address is whether Respondent raised sufficient justification or excuse for failing to timely and completely remediate all complaint action items outline in the Registrar’s Directive. This is an affirmative defense that Respondent bears the burden to establish. Here, the record reflects that although Respondent did not include all items included in the parties’ contract, there was substantial performed to such an extent that the pool at issue passed inspection by the local governing authority. The record also reflects that Complainant denied Respondent access to the project site during the Registrar’s Directive compliance period.

Because Respondent raised a sufficient affirmative defense for his failure to take appropriate corrective action after the Directive was issued by the Registrar for the underlying project, Complainant has not established a violation of Ariz. Rev. Stat. § 32-1154(A)(22).

Because Respondent did not meet minimum workmanship standards as required by Ariz. Admin. Code R4-9-108, Complainant has established a violation of Ariz. Rev. Stat. § 32-1154(A)(3). As such, Complainant has established grounds for the Registrar to take disciplinary action against Respondent’s license.

However, the Registrar neither expects nor demands perfection from licensees. Therefore, licensees must be afforded an opportunity to correct workmanship issues that arise during the performance of it work. Because Respondent was precluded from addressing the issues identified in the Directive due to Complainant’s denial of access, Respondent should not be disciplined for the workmanship violations that it was not permitted to correct.

RECOMMENDED ORDER

Based on the foregoing,

IT IS RECOMMENDED that on the effective date of the Final Order in this matter, the Registrar close Complainant Jana Kay Martin’s complaint in Case No. 2020-00583 against Respondent Gomez Pools & Services LLC, ROC License No. 316303 based on Complainant’s failure to provide Respondent access to comply with the Registrar’s written Directive.

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, July 10, 2020.

/s/ Jenna Clark

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors