ALJDEC decisions subject to certification as final

2020A-02972-CHC-ROC · Registrar of Contractors · 2021-01-06

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Patricia Mazzeo,

COMPLAINANT

Victory Contracting, LLC

License No. 321316,

RESPONDENT

No. 2020A-02972-CHC-ROC

ADMINISTRATIVE LAW JUDGE

DECISION

HEARING: December 28, 2020

APPEARANCES: Complainant Patricia Mazzeo appeared on her own behalf. Respondent Victory Contracting, LLC failed to appear. Arizona Registrar of Contractors Investigator Albert Bernal was present.

ADMINISTRATIVE LAW JUDGE: Sondra J. Vanella

FINDINGS OF FACT

Victory Contracting, LLC (“Respondent”) is the holder of License No. 321316 issued by the Arizona Registrar of Contractors (“Registrar”).

On or about December 5, 2019, Patricia Mazzeo (“Complainant”) contracted with Respondent for the remodel of Complainant’s pool.

On or about June 18, 2020, the Registrar received a Complaint against Respondent from Complainant alleging poor work with respect to the project.

The Registrar assigned the Complaint to Investigator Albert Bernal. After a jobsite inspection, Investigator Bernal issued a Written Directive to Respondent that provided 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 September 8th, 2020.

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

Compliance Item: 3 - Plumbing repairs, and installed were don incorrectly

and water is continuously emptying in side yard. the backwash no longer

functional. Pool filtration system no longer works as it should.

Investigator’s Observation: I noted that the new return lines were not

functioning properly when system was on. Respondent shall correct by the

appropriate means.

Compliance Item: 9 - The Rock waterfall that was resurfaced is cracking

across the back side and sides. Contractor stated that the product used would not crack. It’s been less than 3 months.

Investigator’s Observation: I noted various cracks on the rock waterfall fixture. Respondent shall correct by the appropriate means.

ITEMS NOT REQUIRING CORRECTION

The following complaint items require no action by the Respondent:

Compliance Item: 1 - Requested for pool to be resurface with Pebble tech, but some other product was used that was not Pebble Tech and this product was not disclose.

Investigator’s Observation: Unverified: Relating to this complaint item:

There is not sufficient evidence to find that the Respondent Failed to meet minimum workmanship standards per A.A.C. R4-9-108. No evidence was provided to me at time of inspection to indicate a different product was used. No verification from the manufacturer that this is not the correct product.

Compliance Item: 2 - finish is random texture, color, inconsistent, and wavy.

Investigator’s Observation: After review of all of the evidence in regards to the staining of the pebble tec, I cannot determine that the Respondent caused the damage. It appears the homeowner may have allowed the staining from the deck to enter the pool area, therefore the Registrar will take no further action on this complaint item.

Compliance Item: 4 - The newly installed plumbing appears not to have been installed by a non-pool plumber, even though we requested copies of contract, subcontractor licenses and releases, none of which the contractor provide.

Investigator’s Observation: This is a statement and not an allegation that implicates poor work that I can inspect and report on.

Compliance Item: 5 - Contractor dumped hazardous waste on property and has not cleaned up after multiple request to do so.

Investigator’s Observation: Areas shown to me at the JSI were clean except a small area in the gravel at the house front entrance that had some kind of stain, However, I was unable to assign fault or determine cause at time of inspection.

Compliance Item: 6 - Gutter were filled with washout from fake Pebble Tech

Investigator’s Observation: I noted that this complaint item was corrected by the Respondent prior to jobsite inspection.

Compliance Item: 7 - There were also issues with electrical work, the main light was not correctly installed and has a gap in between the pool service and the light fixture.

Investigator’s Observation: Complainant stated that the electrical work was fine and that the light worked. There is not sufficient evidence to find that the Respondent Failed to meet minimum workmanship standards per A.A.C. R4-9-108.

Compliance Item: 8 - The fake Pebble Tech is coming up now.

Investigator’s Observation: I did not noted any Pebble tech material coming up in the pool interior surface.

Compliance Item: 10 - We area requesting to put a claim against the contractors bond for failure to complete the work, fraud and damage to property.

Investigator’s Observation: This is a statement and not an allegation that implicates poor work that I can inspect and report on.

Following the issuance of the Written Directive and after the deadline in the Written Directive expired, Investigator Bernal was notified that no corrective work had been performed during the specified time period. Investigator Bernal testified that Respondent emailed him after the expiration of the Written Directive indicating that Respondent would contact Complainant to perform the repairs. Investigator Bernal conducted a compliance inspection on September 21, 2020. Investigator Bernal testified that no corrective work had been performed.

The Registrar issued a Citation against Respondent, charging possible violations of A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108; and A.R.S. § 32-1154(A)(22).

The Registrar referred the matter to the Office of Administrative Hearings, an independent state agency, for an evidentiary hearing.

On November 27, 2020, the Registrar issued a Notice of Hearing, setting a hearing on December 28, 2020, at 9:00 a.m. The Registrar mailed copies of the Notice of Hearing to Respondent at its address and email address of record.

On December 10, 2020, the Office of Administrative Hearings issued an Order to the parties advising that the hearing would be conducted via video or telephone and provided the Google Meet link and telephone number to connect to the hearing. That Order was sent to Respondent’s mailing address of record and was also sent electronically to Respondent’s email address of record. A hearing was held on December 28, 2020. Complainant testified on her own behalf. Administrative Notice was taken of the Agency Record.

Respondent did not request that the hearing be continued. Although the start of the hearing was delayed approximately fifteen (15) minutes, Respondent did not appear through an authorized member, employee, or attorney. Consequently, Respondent did not present any evidence to defend its license.

At hearing, Investigator Bernal testified consistently with his findings delineated in the Written Directive.

Complainant testified that Respondent did not contact her until the date that the Written Directive expired and that the condition of the pool remains the same. Complainant testified that the plumbing to the pool is still not functioning and consequently, the pool cannot be back washed, and that the waterfall continues to crack.

Administrative notice is taken of Respondent’s prior License record on January 4, 2021. Such prior License record reflects that Respondent’s License No. 321316 was first issued on July 27, 2018, and has been suspended since August 3, 2020, for non-renewal. Such prior License record also reflects that there is only the instant open complaint, zero resolved/settled/withdrawn complaints, and no previous discipline against Respondent’s license.

CONCLUSIONS OF LAW

This matter lies within the Registrar’s jurisdiction. See A.R.S. § 32-1101 et seq.

Complainant bears the burden of proof to establish Respondent’s statutory violations by a preponderance of the evidence. See A.R.S. § 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 evidence established that Respondent’s work was not in conformity with the Registrar’s standards. Therefore, Complainant established that Respondent did not complete the project in a workmanlike manner in violation of A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108.

The evidence established that Respondent did not attempt to compete the corrective work following the Written Directive being issued. Therefore, Complainant established that Respondent failed to take appropriate corrective action following a Written Directive from the Registrar in violation of A.R.S. § 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 Respondent’s License No. 321316 for a period of three (3) days.

It is further recommended that the Registrar require Respondent to pay the sum of $500.00 as a civil penalty pursuant to A.R.S. § 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 A.R.S. § 32-1101(A)(7), unless Respondent tenders payment of any outstanding prior civil penalty.

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 forty (40) days from the date of that certification.

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-137160-45720000Done this day, January 6, 2021.

/s/ Sondra J. Vanella

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors

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-137160-45720000