ALJDEC decisions subject to certification as final

2020A-03155-CHC-ROC · Registrar of Contractors · 2021-01-25

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Larry Allen,

COMPLAINANT

A Laguna Pools Q C, LLC,

License Number ROC 257428,

RESPONDENT

No. 2020A-03155-CHC-ROC

ADMINISTRATIVE LAW JUDGE

DECISION

HEARING: January 11, 2021

APPEARANCES: Complainant Larry Allen appeared on his own behalf. Giovanni Joya appeared on behalf of Respondent A Laguna Pools Q C, LLC. Arizona Registrar of Contractors Investigator Dennis Bierma was present.

ADMINISTRATIVE LAW JUDGE: Sondra J. Vanella

FINDINGS OF FACT

A Laguna Pools Q C, LLC (“Respondent”) is the holder of License No. 257428 issued by the Arizona Registrar of Contractors (“Registrar”).

In or about June 2019, Larry Allen (“Complainant”) contracted with Respondent for the remodel of Complainant’s pool.

On or about June 29, 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 Dennis Bierma. After a July 21, 2020 jobsite inspection, Investigator Bierma issued a Written Directive to Respondent on July 31, 2020, 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 9, 2020.

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

Complaint Item 2: “cement cracking.”

Investigator’s Observation: Verified: There are cracks throughout the cool deck around the pool.

Respondent stated at time of inspection this would be considered warranty work and has intentions of correcting this issue.

Complaint Item 3: “border on cement peeling off.”

Investigator’s Observation: Verified: There are areas around the edge of the pool deck of peeling and cracking. Respondent stated at time of inspection this would be considered warranty work and has intentions of correcting this issue.

Complaint Item 6: “stain on pebble tech.”

Investigator’s Observation: Verified: There is a stain in the pool at the bottom of the step down. Respondent stated at time of inspection this issue can be taken care of and corrected.

Complaint Item 9: “uneven line on south end of pooldecking.”

Investigator’s Observation: Verified: The south edge of the pool deck is inconsistent, uneven and wavy along the run of that edge.

Complaint Item 10: “Pavers starting to sink.”

Investigator’s Observation: Verified: Walkways of pavers between the concrete settling more than 1⁄4”. Respondent stated at time of inspection this would be considered warranty work and has intentions of correcting this issue.

Complaint Item 17: “Gaps in pavers that won’t fill and grows grass.”

Investigator’s Observation: Verified: Pavers at the south end of pool deck are too large with weeds/grass coming through. Any gaps larger than 3/16 of an inch in the rows nearest to the yard were the pavers observed.

The remaining items of Complaint were determined to require no action by Respondent as they were unverified based upon insufficient evidence.

Investigator Bierma testified that at the jobsite inspection, Respondent’s representative, Giovanni Joya, agreed to correct the verified items of Complaint.

Following the issuance of the Written Directive, close to the deadline date, Investigator Bierma contacted Complainant and was told that Respondent performed some work, but not all work required by the Written Directive.

Investigator Bierma conducted a Compliance Inspection on October 15, 2020. Investigator Bierma’s Compliance Jobsite Inspection Notes state the following:

Some of the work to complete the directive has been corrected and completed. However; the parties had reached a point of a financial dispute and all the work has not been completed at this time. Respondent stated at time of inspection that he is still willing to complete and correct all items, but stated that there was a verbal agreement made with the Complainant that the Complainant would pay the money owed to the Respondent before completing the rest of the items. Payment was not made by the Complainant, therefore; the Respondent did not complete all the items on the directive.

Compliance Findings: The respondent has not taken appropriate corrective action to comply with the Directive.

As stated on Directive: Complaint Item 2: “cement cracking.”

Compliance Inspection Findings for this item: This has been corrected.

As stated on Directive: Complaint Item 3: “border on cement peeling off.”

Compliance Inspection Findings for this item: This has been corrected.

As stated on Directive: Complaint Item 6: “stain on pebble tech.”

Compliance Inspection Findings for this item: This has not been corrected. No corrective work has been done.

As stated on Directive: Complaint Item 9: “uneven line on south end of pooldecking.”

Compliance Inspection Findings for this item: This has been corrected.

As stated on Directive: Complaint Item 10: “Pavers starting to sink.”

Compliance Inspection Findings for this item: Some work has been done, however; the current conditions do not meet ROC Workmanship Standards.

As stated on Directive: Complaint Item 17: “Gaps in pavers that won’t fill and grows grass.”

Compliance Inspection Findings for this item: Some work has been done, however; the current conditions do not meet ROC Workmanship Standards.

Investigator Bierma testified that at the Compliance Inspection, Mr. Joya stated that Respondent remained willing to correct the outstanding items.

Investigator Bierma testified that the parties’ dispute became a financial disagreement in which the Registrar would not be involved. Because all of the items in the Written Directive were not corrected, Investigator Bierma forwarded the matter to the Registrar’s Legal Department.

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(a), and A.R.S. § 32-1154(A)(22).

Investigator Bierma testified consistently with the findings contained in the Written Directive and Compliance Inspection Notes.

Complainant testified that he has not wanted to pay the balance of what he owes to Respondent “because he does not want to pay for inferior work that is not up to standards.” Complainant testified that there is staining and grass growing that need to be “taken care of.”

Mr. Joya testified that all work was completed in August 2019, and that when he tried to collect payment from Complainant, Complainant did not want to pay. Mr. Joya testified that he “tried his hardest to make [Complainant] happy.” Mr. Joya testified that the waterfall issues have been corrected, that the staining is attributable to a calcium buildup, which is “normal,” and that all other issues have been corrected, however, he is not able to satisfy Complainant.

Administrative notice is taken of Respondent’s prior License record on January 15, 2021. Such prior License record reflects that Respondent’s License No. 257428 was first issued on July 31, 2009, and is active. Such prior License record also reflects that there is only the instant open Complaint, zero resolved/settled/withdrawn complaints, and no 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(a).

The evidence established that Respondent did not complete 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. 257428 for a period of two (2) 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 (30) 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 25, 2021.

/s/ Sondra J. Vanella

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors

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-137160-45720000