ALJDEC decisions subject to certification as final

2021A-00473-OMC-LS-ROC · Registrar of Contractors · 2021-02-22

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Arizona Registrar of Contractors,

COMPLAINANT

Pinnacle Pavers & Yard Design LLC,

DBA: Pinnacle Pools and Landscape,

License No. ROC 303088,

RESPONDENT

No. 2021A-00473-OMC-LS-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: February 16, 2021

APPEARANCES: Assistant Attorney General John Tellier, Esq. appeared on behalf of the Arizona Registrar of Contractors (“Registrar”) with Jack Grimm and Daniel Edwards as witnesses. No appearance(s) by or on behalf of Pinnacle Pavers & Yard Design LLC (“Respondent”). Robert Sterling observed.

ADMINISTRATIVE LAW JUDGE: Adam D. Stone

_____________________________________________________________________

After review of the hearing record in this matter, the undersigned Administrative Law Judge makes the following Findings of Fact and Conclusions of Law, and issues this Recommended Order to the Director of the Registrar.

FINDINGS OF FACT

Background and Procedure

Pursuant to Ariz. Admin. Code R4-9-117, Administrative Notice is taken of Respondent’s license file as shown on the Registrar’s public website as of February 16, 2021. According to the Registrar’s website, on June 22, 2016, Respondent was issued ROC License No 303088 for General Dual KA Dual Engineering. The license was suspended effective February 2, 2021. Daniel Lee Witt is listed on the license as its Qualifying Party and Signor. Respondent’s address of record for the license is 9524 W. Camelback Rd. #C130-342, Glendale, Arizona 85305. The license has an active $14,000.00 surety bond issued through Western Surety Company. There are three open complaints against the license, which are presumed to be related to this matter. The license had been disciplined on one prior occasion.

On February 2, 2021, an Order of Summary Suspension, Order Consolidating Cases, and Notice of Promptly Instituted Proceedings was issued against Respondent after the Registrar received three complaints against Respondent’s licenses between January 26, 2021 through January 29, 2021 alleging poor workmanship, abandonment of contract. The Order set forth facts supporting the Registrar’s summary suspension regarding complaints received by the following homeowners: Shannon Clark (Case No. 2021-00342), Aaron Phetteplace (Case No. 2021-00397), and Raymond A. Yelle (Case No. 2021-00419).

Upon investigation, the Registrar substantiated all three complaints regarding abandonment of contract. Given the circumstances, the Registrar determined that the public health, safety or welfare, imperatively required emergency action under Ariz. Rev. Stat. § 41-1092.11(B).

The Registrar set the hearing for February 16, 2021, before the Office of Administrative Hearings (“OAH”), an independent state agency, located in Phoenix, Arizona. The Order was mailed to Respondent’s address of record via certified mail. The correspondence was not returned by the United States Postal Service as refused or undeliverable.

An evidentiary hearing was held per the Order to determine whether cause exists to uphold the summary suspension of Respondent’s license, and whether grounds exist for the Registrar to revoke Respondent’s licenses based on the following alleged violations:

Charge 1: Abandonment of a Contract without Legal Excuse (Ariz. Rev. Stat. § 32-1154(A)(1)) – Three Counts

Charge 2: Minimum Workmanship Standards (Ariz. Rev. Stat. § 32-1154(A)(3) and Ariz. Admin. Code R4-9-108) – Three Counts

Charge 3: Violation of a Rule Adopted by the Registrar (Ariz. Rev. Stat. § 32-1154(A)(8)) – Two Counts

Charge 4: Failure in Any Material Respect to Comply (Ariz. Rev. Stat. § 32-1154(A)(12); Ariz. Rev. Stat. § 32-1158(A)) – Three Counts

The Registrar was represented by Assistant Attorney General John Tellier, Esq., who submitted seventeen exhibits and presented the testimonies of Registrar investigators Jack Grimm (“Investigator Grimm”), and Daniel Edwards (“Investigator Edwards”). The Registrar’s agency record was also admitted as its own exhibit.

Although the start of the duly noticed hearing was delayed approximately fifteen minutes to allow Respondent additional time, Respondent did not appear on his own behalf, through an authorized officer, employee, or attorney, and did not contact OAH to request that the start of the hearing be further delayed, nor did Respondent request that the hearing be continued. Consequently, Respondent did not present any evidence to defend its license.

Hearing Evidence

Homeowner Complaints

Shannon Clark (Case No. 2021-00342)

On or about September 19, 2019, Mr. Clark filed a complaint with the Registrar against Respondent, whereby he accused Respondent of abandonment of their December 21, 2021, contract to install pavers and artificial grass at his home at 7019 W. Mountain View Rd, Peoria, Arizona 85345, for $6,953.00. Mr. Clark paid $3,900.00 as a down payment.

Investigator Grimm was assigned by the Registrar to investigate Ms. Jackson’s complaint. Investigator Grimm testified that he conducted a jobsite inspection on February 1, 2021. Respondent was not present. Investigator Grimm concluded that Respondent did not finish the job and the only work completed was a red outline where the artificial grass was to be installed. He also concluded that Respondent’s workmanship on items performed failed to meet minimum standards.

According to the evidence and testimony, although Mr. Clark paid Respondent $3,900.00, Respondent did not complete the project and the work that was performed was substandard. Respondent never issued a refund to Mr. Clark.

Aaron Phetteplace (Case No. 2021-00397)

On or about January 28, 2021, Mr. Phetteplace filed a complaint with the Registrar against Respondent, whereby he accused Respondent of abandonment of their June 6, 2020, contract to remodel the Phetteplace’s backyard, including installing travertine tile and artificial grout, at 6031 W. Robin Lane, Glendale, Arizona 85310 for $39,091.90.

Investigator Grimm was assigned by the Registrar to investigate Mr. Phetteplace’s complaint. Investigator Grimm testified that he conducted a jobsite inspection on February 2, 2021. Respondent was not present. Investigator Grimm took photos of the project and observed that only work on the water feature was started, and that was not working properly.

Investigator Grimm also testified that he was informed by Mr. Phetteplace that the day before the inspection, Respondent contacted Mr. Phetteplace for additional funds for materials.

According to the evidence and testimony, although Mr. Phetteplace issued payments to Respondent totaling $25,000.60, Respondent did not complete the project and the work that was performed was substandard. Respondent never issued issue a refund to Mr. Phetteplace.

Raymond A. Yelle (Case No. 2021-00419)

On or about January 29, 2021, Mr. Nichols filed a complaint with the Registrar against Respondent, whereby he accused Respondent of abandonment of their November 6, 2020, contract to install pavers, fireplace, and water feature at 14200 W. Village Parkway Unit 2146, Litchfield Park, Arizona 85340, for $13,746.10.

Investigator Edwards was assigned by the Registrar to investigate Mr. Yelle’s complaint. Investigator Edwards testified that he conducted a jobsite inspection on February 3, 2021. Respondent was not present. Investigator Edwards took photos of the project and observed no evidence of work being started, let alone completed, on the project.

According to the evidence and testimony, although Mr. Nichols gave Respondent a deposit of $6,873.00, Respondent never started work on the project and never intended to. Respondent never issued a refund to Mr. Nichols.

CONCLUSIONS OF LAW

These matters lie within the Registrar’s jurisdiction, and was properly brought before OAH.

The purpose of the ROC’s licensing statutes is to protect the public from unscrupulous, unqualified, and financially irresponsible contractors.

The summarily suspended status of Respondent’s licenses does not deprive the Registrar of its ability to prosecute these complaints or prevent the Registrar from determining the merits of these complaints.

The Notice of Hearing that the Registrar mailed to Respondent at its address of record was reasonable. Neither the Notice of Hearing nor Supplemental Notice sent to Respondent were returned as undeliverable. Thus, Respondent is deemed to have received notice of the scheduled proceedings.

The Registrar bears the burden of proof to establish grounds for suspension or revocation of Respondent’s contractor’s license by a preponderance of the evidence.

“A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.” A preponderance of the evidence is “[t]he 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.”

Ariz. Rev. Stat. § 32-1154(A)(1) includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, “[a]bandonment of a contract or refusal to perform after submitting a bid on work without legal excuse for the abandonment or refusal.”

Ariz. Rev. Stat. § 32-1154(A)(3) includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, “[f]ailure in any material respect to comply with this chapter.”

Ariz. Rev. Stat. § 32-1154(A)(8) includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, “[f]ailure in any material respect by the licensee to complete a construction project or operation for the price stated in the contract, or in any modification of the contract.”

Ariz. Rev. Stat. § 32-1154(A)(12) includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, “[f]ailure in any material respect to comply with this chapter.”

Namely, Ariz. Rev. Stat. § 32-1158(A) which holds, in pertinent part, that a contract between a contractor and property owner amounting to more than one thousand dollars must contain the following information in writing:

The name of the contractor and the contractor's business address and license number.

The name and mailing address of the owner and the jobsite address or legal description.

The date the parties entered into the contract.

The estimated date of completion of all work to be performed under the contract.

A description of the work to be performed under the contract.

The total dollar amount to be paid to the contractor by the owner for all work to be performed under the contract, including all applicable taxes.

The dollar amount of any advance deposit paid or scheduled to be paid to the contractor by the owner.

The dollar amount of any progress payment and the stage of construction at which the contractor will be entitled to collect progress payments during the course of construction under the contract.

That the property owner has the right to file a written complaint with the registrar for an alleged violation of section 32-1154, subsection A. The contract shall contain the registrar's telephone number and website address and shall state that complaints must be made within the applicable time period as set forth in section 32-1155, subsection A. The information in this paragraph must be prominently displayed in the contract in at least ten point bold type, and the contract shall be signed by the property owner and the contractor or the contractor's designated representative. This paragraph does not apply to a person who is subject to and complies with section 12-1365.

Ariz. Admin. Code R4-9-108(A) states that “[a] contractor shall perform all work in a professional and workmanlike manner.”

Ariz. Rev. Stat. § 41-1092.11(B) provides, in pertinent part, that if an “[a]gency finds that the public health, safety or welfare imperatively requires emergency action, and incorporates a finding to that effect in its order, the agency may order summary suspension of a license pending promptly instituted proceedings for revocation or other action.”

The evidence in this matter is undisputed.

The record reflects that Respondent contracted with Mr. Clark, Mr. Phetteplace, and Mr. Yelle, (collectively “Complainants”) for a residential backyard and pool improvement projects. Complainants tendered payments for Respondent’s services and/or materials, and Respondent did not complete any of the projects. Further, the work Respondent did perform on some of the projects fell below the Registrar’s minimum workmanship standards. It is further undisputed that Respondent failed to attend any of the jobsite inspections for the projects, and made no attempts to remediate the deficient work or complete any of the projects.

Therefore, the Registrar established violations of Ariz. Admin. Code R4-9-108 and Ariz. Rev. Stat. §§ 32-1154(A)(1), and 32-1154(A)(3).

The record also reflects that Respondent’s contract, or lack thereof, for the Clark project did not meet statutory requirements.

Therefore, the Registrar also established violations of Ariz. Rev. Stat. §§ 32-1154(A)(12), namely 32-1158(A).

Therefore, the only issue in dispute is whether Respondent raised a sufficient justification or excuse for failing to timely and completely finish Complainants projects per their respective agreements. These are affirmative defenses that Respondent bears the burden to establish. In failing to appear for the duly noticed hearing, Respondent failed to provide evidence in mitigation, refute the Registrar’s evidence, or justify his inaction in this matter. Thus, his burden has not been sustained.

Respondent’s pattern of taking payments on new contracts, while failing to fulfill existing contracts, jeopardizes public safety and welfare. Because Respondent failed to appear, no evidence was offered to establish an affirmative defense to the above-captioned conduct.

Therefore, based on the record, the Registrar has established more than ample cause to summarily suspend Respondent’s license under Ariz. Rev. Stat. § 41-1092.11(B).

The tribunal holds that revocation of Respondent’s contracting license pursuant to Ariz. Rev. Stat. §§ 32-1154(A)(1), 32-1154(A)(3); Ariz. Admin. Code R4-9-108, 32-1154(A)(8), and 32-1154(A)(12); namely 32-1158, is appropriate and in the best interest of the public.

RECOMMENDED ORDER

In light of the foregoing,

IT IS RECOMMENDED that the Registrar’s Order of Summary Suspension of Respondent License No. 303088, as issued on February 3, 2021, be affirmed.

IT IS FURTHER RECOMMENDED that on the effective date of the Final Order in this matter, Respondent License No. 303088 shall be revoked by the Registrar.

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 five days from the date of that certification.

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-137160-45720000Done this day, February 22, 2021.

/s/ Adam D. Stone Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors

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