ALJDEC decisions subject to certification as final

2020A-02356-CHC-ROC · Registrar of Contractors · 2020-10-28

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Joshua Trask,

COMPLAINANT,

Desert Lifestyles Inc.,

License No. ROC 190993,

RESPONDENT.

No. 2020A-02356-CHC-ROC

ADMINISTRATIVE LAW JUDGE

DECISION

HEARING: October 8, 2020

APPEARANCES: Complainant Joshua Trask appeared on behalf of himself. David Voss appeared on behalf of Respondent Desert Lifestyles, Inc.

ADMINISTRATIVE LAW JUDGE: Velva Moses-Thompson

FINDINGS OF FACT

Desert Lifestyles, Inc. (Desert Lifestyles) is the holder of License No. 190993 issued by the Arizona Registrar of Contractors (Registrar).

David Wayne Campbell is the qualifying party for Desert Lifestyles.

Mr. Campbell filed an Annual Report & Certificate of Disclosure (Disclosure) with the Arizona Corporation Commission in November of 2016. See Exhibit 118.

Mr. Campbell listed himself as the only shareholder of Desert Lifestyles on the Disclosure. See Exhibit 118. See id.

On or about March 12, 2020, Complainant Joshua Trask and Respondent Desert Lifestyles entered into a residential pool construction contract. The contract was signed by David Voss.

At all times relevant to this matter, Mr. Voss was not a licensed contractor. Mr. Voss was not an employee of Desert Lifestyles. Mr. Voss was not a co-owner of Desert Lifestyles.

Mr. Voss provided Mr. Trask with an owner builder construction contract that included the name of Desert Lifestyles. The contract provided at the bottom of the first page, “Mr. Voss 602.298.6330 Fax 298.6338 License Bond Insured ROC # 190993.”

The contract did not include language that advised Mr. Trask of his right to file a complaint with the Registrar against Desert Lifestyles for an alleged violation of Ariz. Rev. Stat. section 32-1154(A) within the time allowed by Ariz. Rev. Stat. section 32-1155(B).

In March of 2020, Desert Lifestyles and Mr. Voss began installing a pool at Mr. Trask’s home in March of 2020.

In April of 2020, Desert Lifestyles and Mr. Voss stopped work.

On or about May 12, 2020, the Registrar received a complaint from Mr. Trask alleging poor workmanship on the part of Desert Lifestyles.

On June 12, 2020, Registrar Investigator Dennis Bierma conducted a job-site inspection. Mr. Trask, Mr. Campbell, and Mr. Voss were present.

On June 24, 2020, the Registrar issued a Directive to Desert Lifestyles. The June 24, 2020 Directive provided, in relevant part, as follows:

After investigation, the Registrar has verified that your work fails to meet minimum workmanship standards. A.R.S. § 32-1154(A)(3); A.A.C. R4-9-108. Failure to comply with this Directive constitutes a violation of A.R.S. § 32-1154(A)(22) and may result in the issuance of a citation, discipline of your license, and a civil penalty pursuant to A.R.S. § 32-1154(E) of up to $500.00. You must notify the Registrar’s assigned

Investigator of your compliance with this Directive prior to 5:00 p.m. on August 5, 2020.

RESTRICTIONS

You may not perform or hire other contractors to perform work that is outside the scope of your license.

If your license is currently suspended for administrative reasons1, or is inactive, expired, or cancelled, you may not perform any corrective work nor contract in any manner, which includes hiring other contractors to perform work, until the suspension of your license(s) has been lifted or your license(s) has been reactivated.

DIRECTIVE REQUIREMENTS

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

Complaint Item 1: “Plumbing not done per Caretaker clearer plans.”

A: “No by pass for heater.”

B: “no by pass for salt system.”

C: “put in wrong rebar used “stander plans” and should have used Custom for a 75 foot lap pool.”

Investigator’s Observation: Verified: Verified that this project has not been completed to the approval of the local jurisdiction at this point. Respondent shall complete project per original contract agreement, properly executed change orders, verbal agreements, local building codes and manufacturers installation

instructions.

Governing Rule: A.R.S. § 32-1154 (A) 3: Violation of any rule adopted by the registrar, Namely R 4- 9-108: (A) A contractor shall perform work in a professional and workmanlike manner.

Desert Lifestyles did not remedy the violation listed in the Directive by the deadline.

On or about August 10, 2020, the Registrar issued a Citation against Desert Lifestyles’s license. Through the Citation, the Registrar alleged that Desert Lifestyles may have violated Ariz. Rev. Stat. section 32-1154(A)(9)(a), (12); Ariz. Rev. Stat. section 32-1154(A)(3) (specifically, Ariz. Admin. Code section R4-9-108; Ariz. Rev. Stat. section 32-1154(A)(22).

Desert Lifestyles filed a timely answer to the Citation.

The matter was referred to the Office of Administrative Hearings for an evidentiary hearing.

On September 8, 2020, the Registrar issued a Notice of Hearing setting the matter for hearing on October 8, 2020. The Notice of Hearing shows that the hearing was set to consider the charges made in the Citation and Complaint.

The Citation shows that if the Administrative Law Judge finds that the alleged charges are valid, the Registrar may suspend or revoke the license of Desert Lifestyles.

A hearing was held on October 8, 2020.

Mr. Voss testified to the effect that held a 50% interest in Desert Lifestyles at the time of the contract. Mr. Voss asserted that Desert Lifestyle’s work met minimum workmanship standards. Mr. Voss testified to the effect that the plumbing did not need to be corrected. Mr. Voss stated that the excavation payment was returned. Mr. Voss stated that Mr. Trask told him not to come on his property at the job site inspection. Mr. Voss testified to the effect that on April 26, 2020, he was locked out of Mr. Trasks’ property and that he found the Registrar complaint on Mr. Trasks’s door.

Mr. Campbell testified that Mr. Voss has had a 50% ownership interest in Desert Lifestyles since June of 2016. However, Mr. Campbell stated that he did not report Mr. Voss’s purported ownership interest with the Arizona Corporation Commission.

Mr. Campell testified that Mr. Trask made two payments to Desert Lifestyles using a credit card.

I do not find Mr. Voss and Mr. Campbell’s testimony that Mr. Voss was a co-owner of Desert Lifestyles at the time of the contract to be credible.

Investigator Bierma testified regarding his investigation of the complaint and the issuance of the Directive.

Administrative notice is taken of Desert Lifestyles’s license history. According to the Registrar’s website on October 28, 2020, Desert Lifestyles’s license was issued on November 24, 2003, and is active. There are three open complaints against Desert Lifestyles’s license. Desert Lifestyles’s has never been disciplined.

CONCLUSIONS OF LAW

This matter lies within the Registrar’s jurisdiction. See Ariz. Rev. Stat. sections 32-1101 et seq.

Complainant bears the burden of proof to establish Respondent’s statutory violation by a preponderance of the evidence. See Ariz. Rev. Stat. section 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)

The preponderance of the evidence shows that Respondent did not perform

the work in a professional and workmanlike manner in violation of A.A.C. R4-9-108, and thereby of A.R.S. § 32-1154(A)(3).

The preponderance of the evidence does not show that Mr. Voss was an

employee of Desert Lifestyles or a co-owner of Desert Lifestyles, at the time of the contract.

5. The preponderance of the evidence shows that Respondent attempted to

evade Ariz. Rev. Stat. Title 32, Chapter 10, by aiding an unlicensed person, which is a violation of Ariz. Rev. Stat. section 32-1154(A)(9)(a).

6. The undisputed evidence established that Desert Lifestyles’s contract did not include a statement that the property owner has the right to file a written complaint with the Registrar for alleged violations of Ariz. Rev. Stat. section 32-1154(A), which is a violation of Ariz. Rev. Stat. section 32-1154(A)(12) and Ariz. Rev. Stat. section 32-1158.

7. The preponderance of the evidence shows that Respondent failed to comply with the Registrar’s Directive without valid justification, which is a violation of Ariz. Rev. Stat. section 32-1154(A)(22).

RECOMMENDED ORDER

Based on the foregoing, it is recommended that on the effective date of the Order, the Registrar shall suspend License No. 190993 issued to Desert Lifestyles, Inc., for three days. It is further recommended that the Registrar require Respondent to pay the sum of $500.00 as a civil penalty pursuant to Ariz. Rev. Stat. section 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 Ariz. Rev. Stat. section 32-1101(A)(7), unless Respondent tenders payment of any outstanding prior civil penalty.

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-137160-45720000Done this day, October 28, 2020.

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.

/s/ Velva Moses-Thompson

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors

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