ALJDEC decisions subject to certification as final

2020A-02215-CHC-ROC · Registrar of Contractors · 2020-10-09

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Bryan Barrett,

COMPLAINANT

Cosec Land Development LLC

DBA: Amazing Luxury Pools,

License No. ROC 323922, 324318,

RESPONDENT

No. 2020A-02215-CHC-ROC

ADMINISTRATIVE LAW JUDGE

DECISION

HEARING: September 29, 2020

APPEARANCES: Bryan Barrett on his own behalf; James Cook for Respondent

ADMINISTRATIVE LAW JUDGE: Thomas Shedden

FINDINGS OF FACT

On August 28, 2020, the Registrar of Contractors (“ROC”) issued a Notice of Hearing on Contested Case setting the above-captioned matter for hearing on September 29, 2020 at the Office of Administrative Hearing.

The Notice of Hearing shows that the hearing was set to consider the charges made in the complaint and citation that were served on Respondent Cosec Land Development LLC, d.b.a. Amazing Luxury Pools on August 13, 2020. Through the Notice of Hearing, ROC alleges that Respondent may have violated Ariz. Rev. Stat. sections 32-1154(A)(3) and (A)(22).

Respondent holds license Nos. 323922 and 324318 issued by ROC. James Cook is a member of the LLC.

Complainant is Bryan Barrett.

On or about May 3, 2020, Mr. Barrett filed with ROC a complaint against Amazing Luxury Pools / Arizona Best Priced Pools (Andy Alvarado) ROC License number 323922 alleging abandonment.

In his complaint Mr. Barrett wrote that he had wired $50,000 directly to Mr. Alvarado, but no work had been performed.

On May 8, 2020, Mr. Alvarado executed an agreement with Mr. Barrett showing that Mr. Barrett had requested a refund, and that Mr. Alvarado agreed to refund $30,000 by May 11, 2020 and an additional $1000 per month for ten months.

The May 8, 2020 agreement shows that at Mr. Alvarado’s request, Mr. Barrett sent an email to Mr. Cook showing “Forgive me, there has been a misunderstanding with Andy Alvarado and he is working with me to resolve it. He said he is going to send me a refund. Thanks for your patience and understanding. Bryan Barrett.”

On May 12, 2020, Mr. Barrett filed with the Attorney General’s Office a consumer complaint against Andy Alvarado through which he provided: he paid Mr. Alvarado $50,000, but no work was completed; Mr. Alvarado had refunded $30,000 and had agreed to refund an additional $10,000 over ten months; Mr. Alvarado’s website AZBestPricedPools.com shows license number 323922, but that license is for someone else who had informed Mr. Barrett that Mr. Alvarado was a con man; and that Mr. Alvarado had repeatedly stated that Arizona Best Priced Pools and Arizona Luxury Pools were his companies.

ROC investigator Steve Klein conducted a jobsite inspection on June 1, 2020.

On June 1, 2020, ROC issued to Respondent a Directive that provides in part:

.... You must notify the Registrar’s assigned Investigator of your compliance with this Directive prior to 5:00 p.m. on June 19, 2020.

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DIRECTIVE REQUIREMENTS

You are directed to remedy the following violations by the appropriate means:

• Respondent shall complete project per original contract agreement, plans, specifications, properly executed change orders, verbal agreements, local building codes and manufacturers installation instructions.

Complaint #1 $50,000 was wired to Andy Alvarado in advance. No work has been performed on pool, no quote was provided after 7 weeks even though I provided accurate design and rendering which I obtained at my own expense

Inspector’s Observation: Pool Remodel, verified pool is not completed.

Complainant states $50,000.00 deposit was taken and job was never started.

Through emails dated June 1, 2020, Mr. Cook informed Mr. Klein that he had no association with Mr. Alvarado and that Mr. Alvarado was using Respondent’s license without authorization. Mr. Cook added that in 2019 he had considered hiring Mr. Alvarado as a salesperson, but did not do so.

In one email, Mr. Cook reminded Mr. Klein that there had been an issue with Mr. Alvarado on another deal that Respondent had nothing to do with. In a second email, Mr. Cook referenced two other matters in which Mr. Alvarado built pools using Respondent’s license number, with both matters having been resolved.

ROC issued to Respondent a citation dated August 13, 2020, through which ROC alleges that Respondent may have violated Ariz. Rev. Stat. sections 32-1154(A)(3) and (A)(22).

At the hearing, Mr. Barrett testified that he had made the $50,000 payment to Mr. Alvarado and that he had no written contract or any other documentation regarding his agreement with Mr. Alvarado.

Mr. Cook testified to the effect that he had no affiliation with Mr. Alvarado, although he had considered hiring Mr. Alvarado, but had not done so. He also testified that he had no involvement in the agreement between Mr. Barrett and Mr. Alvarado.

Mr. Klein testified that there had been another complaint filed against Respondent, but during resolution of that matter, Mr. Alvarado admitted to working on his own while using Respondent’s license number. Consequently, the complainant in that matter filed a new complaint alleging that Mr. Alvarado had be engaging in unlicensed contracting. Mr. Klein also testified that another similar matter went to hearing.

Mr. Cook testified that in one of the matters Mr. Klein referenced, the complaint against Respondent had been dropped. In the other matter, Mr. Cook helped the complainant to resolve the matter because there was not a lot of money involved, but he added that he should not have done so.

Mr. Cook testified to the effect that Mr. Barrett had contacted him requesting that Mr. Cook to try to get Mr. Alvarado to return the $20,000 still due, and that Mr. Barrett had offered to pay him if the money was refunded.

Mr. Barrett testified that Mr. Cook’s opinion appeared to matter to Mr. Alvarado, and he thought that had Mr. Cook gotten involved, Mr. Alvarado might have refunded the money.

Mr. Barrett testified that Mr. Alvarado’s website still shows Respondent’s license number and to the effect that Mr. Cook should have taken steps to rectify that situation.

CONCLUSIONS OF LAW

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 § R2-19-119.

“At a hearing on an agency action to suspend, revoke, terminate or modify on its own initiative material conditions of a license or permit, the agency has the burden of persuasion.” Ariz. Rev. Stat. § 41-1092.07(G)(2).

“At a hearing on an agency's imposition of fees or penalties or any agency compliance order, the agency has the burden of persuasion.” Ariz. Rev. Stat. § 41-1092.07(G)(3).

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).

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.").

“Statutes shall be liberally construed to effect their objects and to promote justice.” Ariz. Rev. Stat. § 1-211(B).

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).

The Administrative Law Judge may consider ROC’s administrative record. See Ariz. Admin. Code § R4-9-118.

Ariz. Rev. Stat. section 32-1154(A) provides that

The holder of a license or any person listed on a license pursuant to this chapter shall not commit any of the following acts or omissions:

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3. Violation of any rule adopted by the registrar.

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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. 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.

Ariz. Admin. Code section R49108(A) provides that “A contractor shall perform all work in a professional and workmanlike manner.”

Ariz. Rev. Stat. section 32-1154(E) provides that ROC may impose a civil penalty of not to exceed five hundred dollars on a contractor for each violation of Ariz. Rev. Stat. section 32-1154(A)(22).

It has not been shown by a preponderance of the evidence that Mr. Barrett had a contract with Respondent, that Mr. Alvarado was authorized to enter contracts for Respondent, or that Respondent received any money from Mr. Barrett or Mr. Alvarado.

As such, it has not been shown by a preponderance of the evidence that Respondent violated Ariz. Rev. Stat. sections 32-1154(A)(3) or (A)(22).

Consequently, this matter should be dismissed.

RECOMMENDED ORDER

IT IS ORDERED that case number 2020-02215 is dismissed.

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 is forty days after the date of that certification.

-54864001

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-137160-45720000Done this day, October 9, 2020.

/s/ Thomas Shedden

Thomas Shedden

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors-54864001

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-137160-45720000