ALJDEC decisions subject to certification as final
2020A-01807-CHC-ROC · Registrar of Contractors · 2020-10-27
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
Nancy Ramirez,
COMPLAINANT,
v.
Gomez Pools & Service LLC
License No. ROC 316303,
RESPONDENT.
No. 2020A-01807-CHC-ROC
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: August 19, 2020
APPEARANCES: Nancy Ramirez appeared telephonically. Jerry Gomez, Respondent’s Qualifying Party, appeared telephonically.
ADMINISTRATIVE LAW JUDGE: Kay A. Abramsohn
_____________________________________________________________________
Respondent is the holder of License No. 316303, KA-5, Dual Swimming Pool Contractor, issued by the Arizona Registrar of Contractors (Registrar) in 2017.
On or about April 9, 2020, the Registrar received Complainant’s Licensed Complaint Form (Complaint) containing a 6-item list of complaints regarding incomplete pool construction and some damaged property. Complainant indicated that the work had started on December 5, 2019 and had stopped on February 24, [2020].
By letter dated April 13, 2020, the Registrar requested additional information regarding the payments and payment status on the contract.
In October 2019, the parties contracted for construction of an in-ground 15’ by 30’ pool at the cost of $20,000.00. Respondent offered a 2-year warranty on the pool and one month of pool service.
After receiving the Complaint, Registrar’s Investigator Ruben Perez Sr. issued two warning letters, each dated April 29, 2020, regarding the required minimum elements of a contractor’s written contract under Ariz. Rev. Stat. § 32-1158 and regarding the elements further required under licensure for swimming pools under Ariz. Rev. Stat. § 32-1158.01.
Following the jobsite inspection on April 29, 2020, Investigator Perez issued a Written Directive (Directive) verifying four of the six items: Item #2 regarding a broken side gate door; Item #3, incomplete pool, for which the permit would expire on May 5, 2020; Item #5, damage to the block wall at the side gate door; and, Item #6, broken or missing water valves to the house. The Registrar set forth May 20, 2020 as the deadline for Respondent’s compliance with the Directive.
At the compliance inspection on June 1, 2020, Investigator Perez found that the four Directive items had not been completed. As a result, Investigator Perez forwarded the Complaint for legal citation against Respondent.
The Registrar issued a Citation on June 3, 2020, charging Respondent with possible violations of: Ariz. Rev. Stat. § 32-1154(A)(3), namely Ariz. Admin. Code Section R4-9-108; Ariz. Rev. Stat. § 32-1154(A)(12) as to Ariz. Rev. Stat. §§ 32-1158 and 32-1158.01; and Ariz. Rev. Stat. § 32-1154(A)(22).
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 Section 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)(12) includes among the grounds for disciplinary action a failure in any material respect to comply with this chapter.
Ariz. Rev. Stat. § 32-1158 provides that contracts between the parties that are over $1,000.00 must contain, in writing, nine specific elements, including an estimated date of completion. Importantly, the statue provides that the contract set forth the following information in Bold 10-point type: the property owner’s rights to file a complaint with the Registrar for alleged violation of Ariz. Rev. Stat. § 32-1154 within the time frame set forth in Ariz. Rev. Stat. § 32-1155(A) and the Registrar’s telephone number and website.
Ariz. Rev. Stat. § 32-1158.01 provides that in-ground swimming pool contracts between the parties must contain certain payment provisions, certain bond information if the homeowner requests a performance bond, and requirements for written change orders.
Ariz. Rev. Stat. § 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.”
On June 17, 2020, Respondent emailed an Answer to the Citation, stating:
To whom it may concern;
The swimming pool for the Ramirez family has already been plastered. Most repairs have been made, only [] install of a hose bib is pending. Everything should be finalized no later than 10 business days as of today. Any further questions or concerns please let me know. Thank you!
On June 23, 2020, Complainant notified the Registrar as follows:
There are more things pending than what the respondent mentions in his email. The main water has yet to be restored to its original functionality, pool does not [have] the filtration system and pool light installed.
The Registrar noticed the matter for hearing.
At the August 8, 2020, pre-hearing inspection, Investigator Perez was informed that all items had been repaired; two by Respondent and two by a third party.
At hearing, Complainant noted that Respondent’s work had not been done until the day before the pre-hearing inspection and that, during the time the gate door had been broken, their home was exposed and they suffered a break-in, which was why they had hired a third-party to repair the gate door. Complainant indicated that there were still a few details remaining, in that some repainting needed to be done and there were three fittings that needed to be supplied. Complainant expressed concerns about the 2-year warranty Respondent had offered on the pool, as to when the warranty started and when it would end.
At hearing, Respondent agreed that it could do the painting by the upcoming Friday and also that the three fittings were needed to finalize the matter. Respondent noted that there had been unforeseen occurrences and some delays had occurred with COVID issues and employees to work, but argued that it had not abandoned the project. Respondent noted that the one month pool service had already been done to monitor the equipment to assure the equipment was working properly and to give the homeowner information on how to maintain the pool. Respondent indicated that there would be two check-ups, with the first one at 6 months. Finally, Respondent indicated that the 2-year warranty would begin once final payment was received.
In response, Complainant noted that they had not received any instructions as to pool maintenance because they were never informed when Respondent’s workers would be there. Complainant noted that they had hired someone to do the routine pool maintenance.
Based on the hearing record, it would appear that the pool construction would not be considered completed until installation of the three fittings is completed.
Administrative notice is taken of Respondent’s License record with the Registrar, which reflects that, in addition to the instant matter, three other cases remain open; the Registrar’s record does not show any discipline on the license as of the date of this recommended decision.
CONCLUSIONS OF LAW
This matter lies within the Registrar’s jurisdiction. See Ariz. Rev. Stat. § 32-1101 et seq.
Unless otherwise provided by law, a party asserting a claim, right, or entitlement bears the burden of proof; a party asserting an affirmative defense has the burden of establishing the affirmative defense. The standard of proof on all issues in this matter is that of a preponderance of the evidence. Ariz. Admin. Code section R2-19-119.
In this case, Complainant bears the burden of proof to establish Respondent’s statutory violations by a preponderance of the evidence. See Ariz. Rev. Stat. § 41-1092.07(G)(2); Ariz. Admin. Code Section R2-19-119(A) and Ariz. Admin. Code Section 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).
A preponderance of the evidence is:
The 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.
Black’s Law Dictionary 1373 (10th ed. 2014).
5. Statutes should be interpreted to provide a fair and sensible result. Gutierrez v. Industrial Commission of Arizona, 226 Ariz. 395, 249 P.3d 1095 (2011)(citation omitted); State v. McFall, 103 Ariz. 234, 238, 439 P.2d 805, 809 (1968) ("Courts will not place an absurd and unreasonable construction on statutes.").
6. “Statutes shall be liberally construed to effect their objects and to promote justice.” Ariz. Rev. Stat. § 1-211(B).
7. The purpose of the Registrar’s licensing statutes is to protect the public from unscrupulous, unqualified, and financially irresponsible contractors. See Aesthetic Property Maintenance v. Capital Indem. Corp., 183 Ariz. 74, 900 P. 2d 1210 (1995).
8. Construction is not a perfect art and, normally, contractors must be allowed an opportunity to correct poor workmanship before their licenses may be suspended or revoked as a result of a failure to comply with workmanship standards.
9. Regarding workmanship, Investigator Perez found four workmanship issues existed at the time of the April 29, 2020 job site inspection. Following the issuance of the Directive mandating correction of those items by May 20, 2020, Investigator Perez found that these same four workmanship issues remained uncorrected at the time of the June 1, 2020 compliance inspection. Therefore, the Administrative Law Judge concludes that the Investigator-determined workmanship issues existed and, thus, Respondent is in violation of is in violation of Ariz. Rev. Stat. § 32-1154(A)(3), specifically Ariz. Admin. Code Section R4-9-108 for failure to perform all work in a professional and workmanlike manner, and in violation of Ariz. Rev. Stat. § 32-1154(A)(22) for failure to take appropriate corrective action to comply with the Directive by the Directive deadline.
12. Regarding the form of Respondent’s written contract, the Registrar appropriately issued two warnings to Respondent regarding shortcomings and, at the hearing, no evidence was presented demonstrating that Respondent’s written contract was revised to comply with statutory requirements. The Administrative Law Judge concludes that Investigator Perez’s determination of violations of the written contract requirements was appropriate and that Respondent is in violation of 32-1154(A)(12) in failing to comply with the requirements of Ariz. Rev. Stat. §§ 32-1158 and 32-1158.01.
RECOMMENDED ORDER
Based on the foregoing, the Administrative Law Judge recommends that the Registrar impose discipline on Respondent’s ROC License 316303 as follows:
(a) a three business-day suspension on the effective date of the Registrar’s Order in this matter, and
(b) a requirement that Respondent submit to the Registrar a form contract that complies with both Ariz. Rev. Stat. §§ 32-1158 and 32-1158.01 no later than the effective date of the Registrar’s Order in this matter. In the event that Respondent fails to submit a compliant form contract, Respondent’s license shall be further suspended on the effective date of the Registrar’s Order until the Registrar receives and approves a compliant form contract.
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.
Recommended this date, October 27, 2020
/s/ Kay Abramsohn
Administrative Law Judge
Transmitted electronically to:
Jeffrey Fleetham, Director
Registrar of Contractors