ALJDEC decisions subject to certification as final

2020A-05077-CHC-ROC · Registrar of Contractors · 2021-05-06

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Copper Mountain R.V. Park, LLC,

COMPLAINANT

Gomez Pools & Service LLC

License No. ROC 316303,

RESPONDENT

No. 2020A-05077-CHC-ROC

ADMINISTRATIVE LAW JUDGE

DECISION

HEARING: April 16, 2021

APPEARANCES: John A. Weil and Christyn Weil for Complainant; Jerry Gomez for Respondent

ADMINISTRATIVE LAW JUDGE: Thomas Shedden

FINDINGS OF FACT

On March 12, 2021, the Registrar of Contractors (“ROC”) issued a Notice of Hearing on Contested Case setting the above-captioned matter for hearing on April 16, 2021 at the Office of Administrative Hearing.

Through its Notice of Hearing, ROC alleges that Respondent Gomez Pools & Service LLC may have violated Ariz. Rev. Stat. sections 32-1154(A)(3) and (A)(22).

Respondent holds license No. 316303 issued by ROC. Jerry Gomez is Respondent’s qualifying party and a member of the LLC.

Complainant is Copper Mountain R.V. Park LLC.

John A. Weil and Christyn E. Weil are member/managers of the LLC and husband and wife. Mr. Weil and Ms. Weil both appeared and testified.

Jerry Gomez appeared and testified for Respondent; Jerry’s brother, David Gomez was present for Respondent but did not testify.

ROC investigator Ruben Perez Sr. also testified.

On or about October 1, 2019 Complainant and Respondent entered a contract that called for Respondent to construct a pool at the RV Park. The contract price was $73,000. As of the hearing date Complainant had paid to Respondent $69,750. Complainant’s first payment of $18,250 was made on October 7, 2019.

Ms. Weil manages the RV park and was Complainant’s point of contact during the project.

During 2019, Ms. Weil obtained bids on the project. She learned that the typical time required to complete a pool is about six months. It typically takes 30 to 60 days for the engineering and permits, with obtaining the permits being an “unknown,” and then 60 to 90 days for the construction.

The contract did not include a starting date or a proposed date of completion.

Respondent did not commit to a time of completion, but Jerry Gomez was aware that Complainant’s goal was to be operational by the end of the 2019 season, which is April 2020, and about seven months from the October 2019 contract date.

Respondent did not perform any work at the site during October, November or December 2019. There was no evidence adduced at the hearing to show that Respondent was actually doing any work during this time (for example having plans drafted).

In January 2020, Ms. Weil called Respondent and Jerry told her that the permit was under review, but this was not true as the plans were not completed until February 10, 2020, and the permit application was not submitted until March 19, 2020.

Although Respondent asserted that Complainant had been responsible for the one-month delay between the time the plans were ready and the permit application was filed, he provided no evidence to corroborate his testimony that he had made Ms. Weil aware of the fact that Respondent was waiting on Complainant to provide required information.

In early March 2020, Jerry told Ms. Weil that the City of Yuma was holding up the permit, but the project is in Tacna, not City of Yuma.

In March 2020, Ms. Weil contacted Yuma County’s George Amaya, who informed her that there was no permit application on file at the time of her call.

After the permit application was filed, the County requested that Respondent provide additional information, but Respondent did not do so. After Mr. Amaya informed Ms. Weil that the County was awaiting a response, she provided the required information to Respondent.

Through an email to Respondent dated May 21, 2020, Ms. Weil questioned why Respondent had not submitted the required information to the County and asked why Respondent was not returning her telephone calls or emails. Respondent did not reply to Ms. Weil’s email.

On July 21, 2020, the pool shell had been completed and there was communication from Respondent. Consequently, Complainant made a second payment of $18,250 to Respondent.

On August 3, 2020, Complainant made its third payment of $18,250 to Respondent, at which time Respondent committed to pouring the deck the following week. Respondent also committed to completing the pool by September 15, 2020, which would allow one month for Complainant to properly prepare the pool for the October 15, 2020 opening of Park amenities.

Respondent did not do any work during August, September, or October 2020.

Through a letter dated October 15, 2020, Complainant informed Respondent that if the pool was not completed within ten days, Complainant would file with ROC a complaint and commence a civil lawsuit. Complainant also requested that Respondent pay it $3460.17 as recompense for damage Respondent caused to a buried cable.

Respondent had not fully performed as of October 26, 2020, and Complainant filed with ROC a complaint against Respondent alleging abandonment and the doing of a fraudulent act by Respondent. As of that date, Complainant had paid to Respondent $54,750. Complainant also filed a civil suit against Respondent.

After the ROC complaint and the civil suit were filed, Respondent called Complainant stating that it could finish the pool.

The parties then negotiated and entered an “Interim Settlement and Modification of Pool Construction Agreement,” dated November 9, 2020.

Respondent agreed to complete the pool by December 10, 2020, with completion being defined to mean that the park residents could use the pool.

The Interim Settlement Agreement called for Complainant to make three $5000 payments to Respondent with the money to be used solely to buy equipment required to finish the project, with the remaining balance of $3250 due on completion of the pool.

Complainant made the $5000 payments on November 10, December 10 and December 17, 2020.

On December 1, 2020, ROC’s Mr. Perez conducted a jobsite inspection.

On December 3, 2020, ROC issued to Respondent a Directive through which ROC ordered Respondent to complete the job by appropriate means, and to provide ROC with proof that it had done so by 5:00 p.m. on January 5, 2021.

On February 3, 2021, Mr. Perez conducted a compliance jobsite inspection at which he found that Respondent had not completed the pool.

ROC issued to Respondent a Citation dated February 12, 2021, through which ROC alleges that Respondent may have violated Ariz. Rev. Stat. sections 32-1154(A)(3) and (A)(22).

On February 26, 2021, Respondent filed an answer asserting that (1) the pool project was complete; (2) Complainant had not paid in full; and (3) Complainant had delayed payments that caused a delay in timely completion of the last phases of the project.

Mr. Weil’s opinion was to the effect that the parties’ Interim Settlement Agreement proves that Respondent was responsible for the failure to timely complete the pool.

On April 14, 2021, Mr. Perez conducted a prehearing jobsite inspection; he testified that the pool construction was not complete on that date.

Ms. Weil testified to the effect that as of the hearing date, (1) the north side fence was not five feet tall as required; (2) the west side fence had been raised to five feet, but was not yet inspected; (3) the tiles providing the depth of the pool were not all there; (4) the gate-lock needed to be moved from the outside to the inside; (5) the auto-chemical feeder was not operational; (6) labels for equipment were needed; (7) the permit fee of $435 had not been paid; (8) there were cracks in the deck; and (9) the propane was not connected to the heater because the propane company had not approved the set-up. In addition, there were issues with the deck that stood in the way of getting the construction and occupancy permits issued.

Jerry Gomez acknowledged that Respondent had not completed the pool in a timely manner, but he asserted that this was a result of the COVID virus. When asked for specific information about COVID related delays in the delivery of material, he could provide none. He also could not account for Respondent’s lack of progress between October 2019 and March 2020, when restrictions related to the virus went into effect.

The RV Park’s “season” is from October through April of the following year. Adding a pool to an RV park typically allows the owner to increase rents by 10 to15%, with a corresponding increase in costs of about 5%.

Complainant’s gross rent for 2020 was $143,836. Complainant requests restitution for lost rent in the amount of $14,383 and for the $3460.17 cost to repair the cable damaged by Respondent.

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).

The preponderance of the evidence shows that Respondent violated Ariz. Admin. Code section R4-9-108(A), which is also a violation of Ariz. Rev. Stat. section 32-1154(A)(3). In addition, the evidence shows that Respondent provided Complainant with false information while the project was ongoing.

The preponderance of the evidence shows that Respondent did not comply with ROC’s Directive within the time ordered, which is a violation of subsection 32-1154(A)(22).

Because Respondent has violated the applicable statutes as charged, ROC has authority to discipline its license.

ROC has authority to order a party to pay restitution as a condition to the reinstatement of a suspended license. See Sunpower of Arizona v. Arizona Registrar of Contractors, 166 Ariz. 437, 803 P.2d 430 (App. 1990).

In this case however, revocation is the appropriate sanction considering Respondent’s failure to accept responsibility for its actions, its failure to comply with the Interim Settlement Agreement, that Respondent made false statements to Ms. Weil during the time project was under way, and that after almost a year and a half, the project had not been completed.

RECOMMENDED ORDER

IT IS RECOMMENDED that the Registrar revoke Respondent Gomez Pools & Service LLC’s license number 316303.

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.

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

/s/ Thomas Shedden

Thomas Shedden

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors

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-137160-45720000