ALJDEC decisions subject to certification as final

2021A-00538-CHC-ROC · Registrar of Contractors · 2021-07-20

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Tami Hallman,

COMPLAINANT

Imperial Pools And Design LLC

License No. ROC 316814,

RESPONDENT

No. 2021A-00538-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: June 30, 2021

APPEARANCES: Complainant Tami Hallman appeared and was represented by Marshall Hunt. Patrick Crone, Owner and Qualifying Party, appeared on behalf of Respondent Imperial Pools And Design LLC was represented by Bernardo Velasco.

ADMINISTRATIVE LAW JUDGE: Tammy L. Eigenheer

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FINDINGS OF FACT

Imperial Pools And Design LLC (Respondent) is the holder of License No. 316814 issued by the Arizona Registrar of Contractors (Registrar).

On or about January 28, 2020, Tami Hallman (Complainant) signed a contract with Respondent for the construction of a swimming pool, decking, pergola, and outdoor kitchen.

During the project, the parties executed written change orders and agreed upon changes to the outdoor kitchen. Some of the built-in features, including the grill, were changed. The new grill selected required an electrical outlet that the original grill did not require.

On or about February 5, 2021, the Registrar received a Complaint against Respondent from Complainant alleging poor work with respect to the project.

The Registrar assigned the complaint to Investigator Gregory Johndrow. On or about February 26, 2021, after a jobsite inspection, Investigator Johndrow issued a written directive to Respondent that provided as follows:

After investigation, the Registrar determined that you failed to meet the requirements of A.R.S. § 32-1154(A), and now issues this Directive requiring you to take appropriate corrective action. 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 March 15, 2021.

RESTRICTIONS

• You may not perform or hire other contractors to perform work that is outside the scope of your license.

• If your license is currently suspended for administrative reasons, or is inactive, expired, or cancelled, you may not perform any corrective work nor contract in any manner, which includes hiring other contractors to perform work, until the suspension of your license(s) has been lifted or your license(s) has been reactivated.

DIRECTIVE REQUIREMENTS

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

Complaint Item 2: “Still an unfinished project with constant delays in the building process. Original dig date March 10, 2020 / plumbing installed April 21, 2020 / rebar started on May 1, 2020 not completed until May 28, 2020 / gunite installed July 11, 2020 / waterline tile installed 18 July 2020 / tile commenced on 8 Dec 2020 (identified slope on 11 Dec 2020) / pergolas bases were started on 5 Jan 2021 (still not complete). Original ROC Complaint 2020- 04754

Investigator’s Observation: Verified: the respondent provided a written statement by email for the previous complaint, 2020-04754, stating the project would be completed in approximately seven weeks. This inspection was conducted 18 weeks from the date of the respondent’s email. The respondent stated at the time of this inspection the projected completion date is March 1, 2021. Respondent shall complete project per original contract agreement, properly executed change orders, local building codes and manufacturers installation instructions.

Governing Rule: A.R.S. § 32-1154 (A) 3: Violation of any rule adopted by the registrar, Namely R 4-9-108: (A) A contractor shall perform work in a professional and workmanlike manner.

On or about March 3, 2021, Complainant filed an addendum to the complaint to add the issue of unlicensed subcontractors working on the project. Complainant specifically referenced Carlos Delgadillo as an unlicensed subcontractor working on the project.

Following the issuance of the written directive, Respondent performed some additional work on the project. After the deadline in the directive expired, Investigator Johndrow was notified the corrective work had been completed.

On or about March 16, 2021, Investigator Johndrow conducted a compliance jobsite inspection. At that time, Investigator Johndrow noted that Respondent had performed some additional work on the project, but the project remained uncompleted.

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); A.R.S. § 32-1154(A)(9)(A); and A.R.S. § 32-1154(A)(22).

Investigator Johndrow testified that, on or about June 16, 2021, he performed a prehearing jobsite inspection. At that time, Investigator Johndrow noted that the permit had been signed off, but he observed outstanding issues with the project that remained.

Micky Hallman testified that the original grill did not require an electrical outlet, but the new grill that was selected required an outlet. Mr. Hallman acknowledged that the contract did not specify the number of electrical outlets on the pergola. Mr. Hallman stated that he had specific purposes in mind for the electrical outlets originally planned for the pergola and that, if the new grill required one of those outlets, he would be unable to use the remaining outlets as he had intended. Mr. Hallman also stated that he first saw Mr. Delgadillo working on his project in October 2020.

Mr. Crone testified that, because of the pandemic, demand for swimming pools in the area was exacerbated because everyone was home and wanted a pool. Mr. Crone stated that demand had increased dramatically, but labor and materials were in short supply. Mr. Crone argued that Complainant’s project was completed as of early April. Mr. Crone maintained that the exact number of outlets was not determined and that he did not believe an additional outlet needed to be added just because the new grill required an outlet. Mr. Crone stated that Mr. Delgadillo was starting his own business on the side, but that he had been Respondent’s employee for a couple of years. Mr. Crone testified that many of Respondent’s employees freelanced on the side. Mr. Crone asserted that Mr. Delgadillo did not work on Complainant’s project in 2020, but worked only from mid-January through the end of the project.

Alyssa Crone, Respondent’s Co-Owner, testified regarding the payroll records for Mr. Delgadillo. The records, consisting of two paystubs for the pay periods February 22, 2021, through March 7, 2021, and March 8, 2021, through March 21, 2021, show Mr. Delgadillo was paid a salary of $2500.00 per pay period. The year-to-date totals on the second paystub show Mr. Delgadillo had been paid $5000.00 for the year, or the total of the two paychecks introduced. Ms. Crone stated that, because Mr. Delgadillo had changed banks at the beginning of the year, he requested that he be paid with cashier’s checks until he was authorized to deposit regular checks in the account without a hold period. Ms. Crone indicated that because the prior paychecks for the year were not issued in the same manner, they were not reflected in the paystubs year-to-date totals.

Administrative notice is taken of Respondent’s prior License record on July 19, 2021. Such prior License record reflects that Respondent’s License No. 316814 was first issued on December 2, 2012, and was active. Such prior License record also reflects that there were 8 open complaints, 13 prior resolved/settled complaints, and 2 prior complaints resulting in 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).

While there was no specific number of electrical outlets in the original contract, when the original grill was changed for one that required an electrical outlet, an increase in the total number of outlets should have been increased to accommodate the change and maintain the original number of outlets the parties agreed upon. At the time of the deadline in the directive, some work was not complete and the work that had been completed had workmanship issues.

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 Mr. Delgadillo worked on the project from, at least, January 2021. Respondent’s pay records did not establish that Mr. Delgadillo was an employee from January 2021 through February 22, 2021.

As such, Respondent hired an unlicensed contractor to perform work on the project. Therefore, Complainant established that Respondent aided and abetted an unlicensed person in violation of A.R.S. § 32-1154(A)(9).

The evidence established that Respondent did not complete the corrective work following the 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 revoke Respondent’s License No. 316814.

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)(5), 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 40 days from the date of that certification.

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-137160-45720000Done this day, July 20, 2021.

/s/ Tammy L. Eigenheer

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors

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-137160-45720000