ALJDEC decisions subject to certification as final

2020A-00693-NPC-ROC · Registrar of Contractors · 2020-06-24

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Aquarium Pool and Plastering LLC,

COMPLAINANT

v.

Iguana Blue Pools LLC,

License No. ROC 316147,

RESPONDENT

No. 2020A-00693-NPC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: June 4, 2020, 9:00 A.M.

APPEARANCES: Edelman Salazar appeared on behalf of Complainant; Michael Gilbert appeared on behalf of Respondent

ADMINISTRATIVE LAW JUDGE: Roger A. Geddes

_____________________________________________________________________

FINDINGS OF FACT

Background and Procedure

1. Iguana Blue Pools, LLC (Respondent), is the holder of License Number 316147 issued by the Registrar of Contractors (Registrar).

2. On or about February 10, 2020, Aquarium Pool and Plastering, LLC (Complainant), filed a Complaint against Respondent with the Registrar alleging that Respondent owed Complainant the outstanding balance of $9,000.00 for pool plastering work performed by Complainant for Respondent.

3. On March 13, 2020, the Registrar issued a Citation for Alleged Violation of A.R.S. § 32-1154(A)(10) for the alleged failure by Respondent to pay monies in excess of $750.00 when due for materials or services rendered in connection with Respondent’s operations as a contractor. 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 for May 19, 2020, which was continued to June 3, 2020, and then again to June 4, 2020.

4. At the June 4, 2020, hearing, Complainant presented the testimony of Edelman Salazar, who represented himself to be the owner of Complainant. Respondent presented the testimony of Michael Gilbert, who represented himself to be the manager of Respondent, and Robert Morales. The Tribunal received and admitted Respondent’s exhibit numbers 1 - 26.

5. Edelman Salazar testified on behalf of Complainant that Respondent paid Complainant $8,000.00 but did not pay the remaining $9,000.00 of the $17,000.00 agreed-upon amount for pool plastering. He stated that his workers were not allowed to do their work in the way they wanted and were constantly being told by Respondent how to do the job. He further stated that Respondent complained about the job at the end and that he responded that he would remedy Respondent’s issues if Respondent paid the full amount. He stated he agreed to come back in two weeks after completion, but did not come back because he had been expecting final payment.

He further testified that he did not come back to grind the steps in the spa to make them level because he stated Respondent had already started grinding the steps. He stated he did not agree there was a problem with the steps but that any irregularities with the plaster was due to the underlying concrete that was installed by others and that his workers simply applied plastering to the existing concrete. He further testified that he could do an acid wash of the pool at a cost of $300.00 to $400.00.

6. Michael Gilbert testified on behalf of Respondent that he was the owner/general contractor on the project and that he has 44 years of construction experience. He explained that he initially believed the $17,000.00 contract price to be excessive, but that Complainant justified the price because Complainant represented it would take three to four days alone just to acid wash the pool surface after applying the plaster. He stated that in fact Complainant expended only two to three hours to do the acid washing.

He further stated that he never received or signed a contract and that Complainant requested an initial payment of $8,000.00 to be wired with the remaining $9,000.00 to be paid upon completion of the work. He stated Complainant represented he would return within two weeks after the end of the work to remedy any deficiencies pointed out by Respondent but that he never heard from Complainant again until the instant Complaint was filed.

He further testified that because so much time has passed since the plaster was applied, acid washing the surface would not work and rather the entire pool surface would need to be honed, which he believed would cost between $8,000.00 and $9,000.00. Further, he believed it would take one worker two days to grind and level the spa steps and that the grinding of the Baja bench would cost between $7,500.00 and $8,000.00.

7. Robert Morales, who represented himself to be a consultant hired by Respondent to design and build the pool, testified on behalf of Respondent that he had been in construction for 25 years and that he had been involved with 12 dozen pool constructions. He stated he had been present during the entire time of Complainant’s work and because he observed that the plaster application was substandard and unacceptable on the spa stairs (Respondent’s Exhibits 24, 26) and the Baja bench in the pool (Respondent’s Exhibits 10, 11, 12), he made suggestions to Complainant’s workers to straighten the edges. He stated he showed the workers that they were using too much plaster on the step edges creating inconsistencies. He acknowledged that he did some grinding and polishing on one spa step to show the workers how it was to be done to give the edge a serpentine look but that he did no grinding on the remaining spa steps or the Baja bench. He stated he pointed out to Complainant’s workers the areas that were not acceptable and Complainant agreed to come back in two weeks to grind and polish those areas, but never came back.

He stated that Complainant only did a light acid wash on the entire pool surface that took only two hours and then filled the pool and that Complainant had represented the blue speckled pool surface that had been desired by Respondent would eventually be brought out when chemicals were added to the water. However, he said that when he came back to the job site on Memorial Day, the pool surface looked no different than when Complainant had performed the light acid wash.

He further testified that the pool surface had now cured due to lapse of time and that he believed that honing the entire pool rather than acid washing would be needed to bring out the blue speckles as was originally desired. He stated that the cost to hone the entire pool, reshape the spa steps, and grind imperfections on the Baja bench would exceed $9,000.00.

8. Respondent did not assert that it lacked the capacity to pay the amount Complainant contends is due.

CONCLUSIONS OF LAW

1. The Registrar has jurisdiction over this matter, pursuant to A.R.S. § 32-1101, et seq., which authorizes the Registrar to impose disciplinary sanctions against licenses for violations of A.R.S. § 32-1154.

2. The burden of proof at an administrative hearing falls to the party asserting a claim, right, or entitlement and the standard of proof on all issues in these matters is by preponderance of the evidence. See Arizona Administrative Code Rule 2-19-119.

3. To warrant such sanctions by the Registrar, Complainant must demonstrate by a preponderance of the evidence that Respondent violated the statutory section cited. Proof by a “preponderance” means that “the evidence is sufficient to persuade the finder of fact that the proposition is more likely true than not.” In re: Arnold and Baker Farms, 177 B.R. 648 (9th Cir. BAP (Ariz.) 1994). See also Culpepper v. State of Arizona, 187 Ariz. 431, 930 P.2d 508 (App. 1996). It is “evidence which is of greater weight or more convincing than the evidence which is offered in opposition to it; that is, evidence which as a whole shows that the fact sought to be proved is more probable than not.” BLACK’S LAW DICTIONARY 1182 (Rev. 6th ed. 1990).

4. A.R.S. § 32-1154(A)(10) includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license the:

Failure by a licensee or agent or official of a licensee to pay monies in excess of $750 when due for materials or services rendered in connection with the licensee's operations as a contractor unless the licensee proves that the licensee lacks the capacity to pay, and has not received sufficient monies as payment for the particular construction work project or operation for which the services or materials were rendered or purchased.

5. A.R.S. § 32-1154(A)(10). Complainant has failed to satisfy its burden to demonstrate that the amount of $9,000.00 had become due from Respondent for materials or services rendered in connection with Respondent’s operations as a contractor. There was no dispute that there was no signed contract between the parties. Indeed, there was further no dispute that final payment from Respondent to Complainant was not due until the job was completed. While Complainant may contend that the job was completed, the Tribunal finds that the deficiencies in Complainant’s work were of such significance that the job was not in fact completed. Indeed, Complainant had agreed to return to address those deficiencies, which it failed to do. Accordingly, the Tribunal finds that Respondent had no obligation to make the final payment to Complainant which was not yet due and therefore there was no failure on the part of Respondent to pay monies in excess of $750.00 “when due.”

6. Complainant’s argument that the deficiencies in Complainant’s work claimed by Respondent were caused by deficiencies in the existing concrete is unavailing. There was no evidence presented to suggest that any alleged deficiencies in the concrete would not have been readily observable to Complainant during the bidding process, and therefore Complainant had the obligation to bring such alleged deficiencies to the attention of Respondent or otherwise accept any consequences of the alleged effect of the concrete on Complainant’s work

7. While the Tribunal finds that that the amount of $9,000.00 was not yet due to Complainant, the Tribunal makes no finding as to whether Respondent may in fact owe some additional amount to Complainant for the value of Complainant’s unpaid services. However, Complainant’s recourse, if any, in that regard would be in a court of a different jurisdiction.

RECOMMENDED ORDER

Based on the foregoing, it is recommended that on the effective date of the final order in this matter, that the Citation and Complaint in Case No. 2020A-00693 shall be dismissed.

In the event of certification of this Administrative Law Judge Decision by the Director of the Office of Administrative Hearings, the effective date of the Order will be five days from the date of the certification.

Done this day, June 24, 2020.

/s/ Roger Geddes

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors