ALJDEC decisions subject to certification as final

2021A-00739-CHC-ROC · Registrar of Contractors · 2021-08-26

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Kristin Hughes,

COMPLAINANT

Imperial Pools And Design LLC,

License No. ROC 316814,

RESPONDENT

No. 2021A-00739-CHC-ROC

ADMINISTRATIVE LAW JUDGE

DECISION

HEARING: August 24, 2021

APPEARANCES: Kristin Hughes appeared on her own behalf; no one appeared for Respondent

ADMINISTRATIVE LAW JUDGE: Thomas Shedden

FINDINGS OF FACT

On July 16, 2021, the Registrar of Contractors (“ROC”) issued a Notice of Hearing on Contested Case setting the above-captioned matter for hearing on August 24, 2021.

Through its Notice of Hearing, ROC alleges that Respondent Imperial Pools and Design LLC may have violated Ariz. Rev. Stat. sections 32-1154(A)(3), (A)(12) and (A)(22).

Respondent holds license No. 316814 issued by ROC.

ROC’s Notice of Hearing shows that the hearing would be conducted at 400 West Congress Street Suite 212 in Tucson.

Through an Order dated July 30, 2021, the undersigned informed the parties that ROC’s Notice of Hearing was in error and that the hearing would be conducted at the Office of Administrative Hearing in Phoenix. That Order also informed the parties that they could appear by video conference or telephone and provided the appropriate information to do so.

No one appeared for Respondent in-person, or by video conference or telephone at the scheduled hearing time, and the matter was convened in its absence at about 1:15 p.m.

Complainant Kristin Hughes appeared and testified. ROC investigator Manuel Bermudez also testified.

In June 2020, Complainant and Respondent entered a contract that called for Respondent to construct a pool at Complainant’s house.

On February 14, 2021 Complainant filed with ROC a complaint against Respondent alleging abandonment on Respondent’s part.

ROC investigator Mr. Bermudez conducted a jobsite inspection on March 22, 2021.

On March 24, 2021, ROC issued to Respondent a Directive that provided in part:

.... You must notify the Registrar’s assigned Investigator of your compliance with this Directive prior to 5:00 p.m. on April 28, 2021.

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DIRECTIVE REQUIREMENTS

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

Complaint Item 1: “work dragging out far beyond discussed timeline. Contract signed 6/9/2020- we are now coming on 9months. Was told by Steve, 4 months to complete.”

Investigator’s Observation: Verified: At the jobsite inspection, I visually saw an incomplete swimming pool. Although the contract does not have a completion date listed, the contract date is 6/9/2020. The contract does mention under the portion “Example Schedule” “Example New Construction Pool: Typical time-frame 8weeks to 10 weeks for basic pools. Addition of a spa will add 1-2 weeks. Addition of outdoor kitchen raised areas, fire pits and other hardscape features can add additional weeks to the time frame.” There were no additional features included in this contract. According to the information on the contract, the swimming pool should have been completed by September 2020. It has been approximately 40 weeks from the date of contract.

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.

Respondent to complete work per contract.

Complaint Item 3: “Proper inspections have not been completed with Pima county. No one checks quality of work as project creeps on.”

Investigator’s Observation: Verified: A check of the City of Tucson Property Research Online disclosed that no inspections have been made to the work performed.

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. A.R.S. § 32-1154(A) 2: Departure from or disregard of: (b) A building code...

Respondent to provide a record of inspections for construction activities related to City of Tucson Building Permit for contracted work.

ITEMS NOT REQUIRING CORRECTION

The following complaint items require no action by the Respondent:

Complaint Item 2: “Company does not reply to emails and has gone MIA for weeks /months. Told many times they were coming to do work and then no-show.”

Investigator’s Observation: Unverified: This statement dose not implicate a workmanship issue for me to observe and report on.

Governing Rule: N/A

On May 27, 2021, Mr. Bermudez conducted a compliance jobsite inspection at which time he determined that Respondent was not in compliance with ROC’s Directive.

Mr. Bermudez testified to the effect that the items identified in ROC’s Directive were violations of the workmanship standards.

Mr. Bermudez testified that Respondent’s contract did not include the estimated date the project would be completed, which is a violation of Ariz. Rev. Stat. section 32-1158. Mr. Bermudez could not identify any violations of Ariz. Rev. Stat. section 32-1158.01.

ROC issued to Respondent a Citation dated June 10, 2021, through which ROC alleges that Respondent may have violated Ariz. Rev. Stat. sections 32-1154(A)(3), (A)(12) and (A)(22).

As of the hearing date, construction of the pool had not been completed.

Ms. Hughes testified as to Respondent’s lack of communication; that the permits had expired; that the pump Respondent installed was not what was called for in the contract; that Respondent’s work resulted in dangerous conditions in the yard (open trenches and sharp objects); and that the inspections conducted by the City were not proper because these were not conducted as work was completed, but rather were all conducted on one date.

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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12. Failure in any material respect to comply with this chapter.

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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 32-1158 sets out the minimum elements of a contract, one of which is to include an estimated date of completion.

Ariz. Rev. Stat. section 32-1158.01 sets out additional requirements for contracts for the construction of pools.

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).

The preponderance of the evidence shows that Respondent violated Ariz. Rev. Stat. section 32-1158 because its contract did not include an estimated date of completion, which is also a violation of section 32-1154(A)(12).

It has not been shown that Respondent violated section 32-1158.01.

The preponderance of the evidence shows that Respondent violated Ariz. Rev. Stat. section 32-1154(A)(22) because it did not comply with ROC’s Directive within the time ordered.

Ariz. Rev. Stat. subsection 32-1154(B)(3) provides that ROC “May temporarily suspend ... or permanently revoke any or all licenses issued under this chapter if the holder of the license ... commits any of the acts or omissions set forth in” subsection 32-1154(A).

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).

Respondent’s license should be suspended for one day and it should be assessed a civil penalty of $500.

RECOMMENDED ORDER

IT IS RECOMMENDED that the Registrar of Contractors suspend Respondent Imperial Pools and Design LLC’s license number 316814 for one day and that the Registrar assess against Respondent a civil penalty of $500.

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, August 26, 2021.

/s/ Thomas Shedden

Thomas Shedden

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors

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-137160-45720000