ALJDEC decisions subject to certification as final

2020A-05983-CHC-ROC · Registrar of Contractors · 2021-06-11

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Colleen Elizabeth White ,

COMPLAINANT

Aqua Splash Plastering LLC

License No. ROC 277715,

RESPONDENT

No. 2020A-05983-CHC-ROC

ADMINISTRATIVE LAW JUDGE

DECISION

HEARING: May 24, 2021

APPEARANCES: Colleen Elizabeth White on her own behalf (who left the hearing before it concluded); Javier Caraveo for Respondent (who arrived late)

ADMINISTRATIVE LAW JUDGE: Thomas Shedden

FINDINGS OF FACT

On April 14, 2021, the Registrar of Contractors (“ROC”) issued a Notice of Hearing setting the above-captioned matter for hearing at 9:00 a.m. on May 24, 2021 at the Office of Administrative Hearing.

Through its Notice of Hearing ROC alleged that Respondent Aqua Splash Plastering LLC may have violated Ariz. Rev. Stat. sections 32-1154(A)(3) and (A)(22).

Respondent holds license No. 277715 issued by ROC. Javier Caraveo is Respondent’s owner.

Complainant is Colleen Elizabeth White.

No representative for Respondent appeared at the scheduled hearing time and the matter was convened in its absence at about 9:15.

Mr. Caraveo appeared at about 9:40 while the matter was in progress. Soon after Mr. Caraveo appeared, Ms. White became upset and said she was leaving the hearing, which was being conducted by video conference and telephone. Ms. White did leave her location, but did not log off. The ALJ had muted her microphone. The matter continued in her absence.

Ms. White reappeared after a few minutes and at that time she did disconnect from the hearing room. The matter continued in her absence.

On or about June 30, 2020, Complainant and Respondent entered a contract that called for Respondent to re-plaster Complainant’s pool. The contract provides that the services were “Demo pool & apply traditional plaster 25% 3M quartz – not touching or responsible for anything else.” (Underscore added.)

On or about December 28, 2020, Ms. White filed with ROC a complaint against Respondent alleging that she did not receive what was promised and that the job was abandoned.

ROC investigator Jack Grimm conducted a jobsite inspection on January 14, 2021.

On January 22, 2021, ROC issued to Respondent a Directive that required Respondent to remedy by appropriate means:

Complaint Item #13: Nov 2 I contacted Javier to find out what day and time he planned to come out. I told Javier our pool is not complete. The jets are still missing and others not replaced with new ones except the ones I purchased, and there is not a visible spec of blue in that pool as I wanted, as I paid for, and as he promised.

Investigators Observation: Installation of pool jets is incomplete. Homeowner states she supplied the ones that are installed. Some of the jets are installed per industry standard and are flush to the pool finish. Others are not installed flush to the pool finish and others are missing or incomplete. Issue of blue color addressed in complaint item #12.

*Complete installation of jets and/or return and supply fixtures

Governing Rule: 32-1154(A)(3) poor or incomplete work

ROC’s Directive shows that ROC determined that complaint item 12 regarding the blue coloring did not require correction and did not represent a workmanship violation on Respondent’s part.

ROC’s Directive shows that ROC had determined that Ms. White’s other allegations did not require any action on Respondent’s part.

ROC’s Directive required Respondent to provide ROC with written proof that it had made the required corrections by no later than 5:00 p.m. February 22, 2021.

Respondent did not complete the work ROC ordered it to complete by the deadline imposed by ROC.

ROC issued to Respondent a Citation dated March 4, 2021, through which ROC alleges that Respondent may have violated Ariz. Rev. Stat. sections 32-1154(A)(3) and (A)(22).

Mr. Caraveo testified to the effect that Respondent had removed the existing jets and reinstalled those after plastering the pool. The existing jets were not flush with the pool wall before or after Respondent completed its work.

The existing plumbing (i.e., the piping leading to the pool wall) was old and non-standard, which appears to be why the jets did not fit flush against the wall.

Respondent went to Home Depot to see if it could obtain parts that would adapt to what was at the pool, but it did not have the required parts. Mr. Caraveo testified that Respondent made the effort to get the parts to make Ms. White happy, but Respondent was not contractually obligated to do so.

Some of the jets stick out about six inches and Mr. Caraveo acknowledged that Respondent could have shorten those pieces to bring the jets closer to the wall.

Mr. Caraveo testified to the effect that to get the jets flush to the wall would require chipping out plaster and modifying the existing plumbing, which was not within Respondent’s scope of work.

Mr. Grimm’s opinion was to the effect that Respondent was obligated to replace the jets as part of its work, and he would have expected Respondent to make more of an effort to locate appropriate parts to get the jets flush. He noted that there are many old pools in Arizona and that this could not have been a unique 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:

*****

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 proven by a preponderance of the evidence that Respondent violated section 32-1154(A)(3) because it has not been proven that the contract required Respondent to replace the existing jets with jets that would fit flush to the wall. To the contrary, the parties’ contract calls only for plastering the pool, not modifying the existing plumbing.

Although Respondent did not comply with ROC’s Directive within the time ordered, its failure to do so was justified and not a violation of subsection (A)(22) because it was not proven that Respondent was contractually obligated to perform the work set out in the Directive.

Consequently, this matter should be dismissed.

RECOMMENDED ORDER

IT IS ORDERED that case number 2020-05983 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.

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-137160-45720000Done this day, June 11, 2021.

/s/ Thomas Shedden

Thomas Shedden

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors

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