ALJDEC decisions subject to certification as final

2021A-01100-OMC-LS-ROC · Registrar of Contractors · 2021-04-22

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Arizona Registrar of Contractors,

COMPLAINANT

Bravado Pools and Landscape, LLC,

License No. ROC 322639,

RESPONDENT

No. 2021A-01100-OMC-LS-ROC

ADMINISTRATIVE LAW JUDGE

DECISION

HEARING: April 7, 2021

APPEARANCES: Assistant Attorney General John Tellier represented Complainant Arizona Registrar of Contractors. Brian Walters appeared on behalf of Respondent Bravado Pools and Landscape, LLC. The following witnesses appeared on behalf of the Arizona Registrar of Contractors: Robert Stirling, Assistant Chief Counsel, Investigators Wes Ellington, Steve Klein, Albert Bernal, and Steven Avila, and Complainants Christopher Davis, Raina Johnsen, Ryan Altieri, Anahi Conroy, and Julie Orent.

ADMINISTRATIVE LAW JUDGE: Sondra J. Vanella

Having considered the evidence in this matter, the undersigned Administrative Law Judge hereby makes the following Findings of Fact and Conclusions of Law and issues the following Recommended Order to the Director of the Arizona Registrar of Contractors.

FINDINGS OF FACT

Background and Procedure

On November 16, 2018, the Arizona Registrar of Contractors (“Registrar”) issued License No. 322639, a B-4 General Residential Engineering Contractor license to Bravado Pools and Landscape, LLC (“Respondent”). Brian Walters is Respondent’s Qualifying Party and Manager.

On March 17, 2021, the Registrar issued an Order of Summary Suspension, Order Consolidating Cases, and Notice of Promptly Instituted Proceedings (“Order”) setting the above-captioned matter for an expedited hearing at 9:00 a.m. on April 7, 2021, at the Office of Administrative Hearings. In the Order, the Registrar presented its determination that the public health, safety or welfare imperatively required emergency action and summarily suspended Respondent’s license.

On March 25, 2021, the Registrar issued a Supplemental Notice and Second Order Consolidating Cases to clarify and detail the specific charges against Respondent and added a new Complaint (Case 2021-00747 Anahi Conroy) to the previously consolidated two Complaints.

On March 31, 2021, the Registrar issued a Second Supplemental Notice and Third Order Consolidating Cases to clarify and detail the specific charges against Respondent and added a new Complaint (Case 2021-01189 Ryan Michael Altieri) to the previously consolidated Complaints.

On April 1, 2021, the Registrar issued a Third Supplemental Notice and Fourth Order Consolidating Cases to clarify and detail the specific charges against Respondent and added a new Complaint (Case 2021-01076 Christopher Thomas Davis) to the previously consolidated Complaints, ultimately consolidating six cases.

Hearing Evidence

Brian Walters appeared on behalf of Respondent. The Registrar called the following witnesses: Robert Stirling, Assistant Chief Counsel, Investigators Wes Ellington, Steve Klein, Albert Bernal, and Steven Avila, and Complainants Christopher Davis, Raina Johnsen, Ryan Altieri, Anahi Conroy, and Julie Orent.

Between November 2020 and March 2021, the Registrar received six complaints against Respondent which were consolidated into this single proceeding, all alleging abandonment.

Complaint No. 2020-05894

On December 18, 2020, the Registrar received a Complaint against Respondent filed by Julie Orent. In her complaint Ms. Orent alleged abandonment with regard to the pool construction project undertaken by Respondent. Ms. Orent’s Complaint indicates that the contract price was $48,000.00 and that she paid Respondent $24,500.00.

On February 3, 2021, Registrar Investigator Wes Ellington conducted a jobsite inspection. Mr. Walters arrived late to the jobsite inspection. Investigator Ellington inspected the work that had been done on the project and took photographs of the project. Subsequent to the jobsite inspection, Investigator Ellington drafted Jobsite Inspection Notes.

On February 3, 2021, Investigator Ellington issued a WRITTEN Directive from the Registrar to Respondent because he determined that Respondent failed to complete the project after five months, given that the parties’ contract specified that the project was to be completed by September 21, 2020. Specifically, Respondent was ordered to complete the project per contract. Respondent was put on notice that it had until March 5, 2021, to notify the Registrar of its compliance with the WRITTEN Directive or face discipline pursuant to Ariz. Rev. Stat. §§ 32-1154(A)(22) and 32-1154(E).

Upon review of the parties’ contract, Investigator Ellington observed that the contract failed to contain the required minimum elements of a contract required by Ariz. Rev. Stat. § 32-1158(A). Investigator Ellington testified that specifically lacking was the advisement that the property owner has the right to file a written complaint with the Registrar. Investigator Ellington testified that other elements may have been lacking as well.

On February 3, 2021, Investigator Ellington issued a WARNING LETTER to Respondent for a violation of Ariz. Rev. Stat. § 32-1158(A).

Julie Orent testified that Respondent began work on the project on August 13, 2020, and stopped working on the project on December 14, 2020. Ms. Orent further testified that although Respondent worked on the project again after the filing of the Complaint, it is “far from complete.” Ms. Orent testified that Mr. Walters had told her that he was having difficulty obtaining workers, and would schedule a time to perform work, and then no one would show up to the project.

Complaint No. 2021-00290

On January 22, 2021, the Registrar received a Complaint against Respondent filed by Eric and Raina Johnsen. In their Complaint, the Johnsens alleged that Respondent had abandoned their pool construction project as “it has been more than 6 months and work not finished . . .” The Complaint indicates that the contract price was $33,250.00 and that the Johnsens paid Respondent $27,950.00.

On January 27, 2021, the Registrar issued a Jobsite Inspection Notice to the parties, advising that a jobsite inspection would be conducted by a Registrar investigator on February 10, 2021. On February 8, 2021, the Registrar issued a letter to the parties advising that the jobsite inspection was rescheduled to February 16, 2021.

On February 16, 2021, Investigator Albert Bernal conducted an inspection of the project site. Mr. Walters was present. Investigator Bernal took photographs of the project site. Investigator Bernal testified that he spoke with Mr. Walters at the jobsite inspection and Mr. Walters agreed that the project needed to be completed.

On February 24, 2021, Investigator Bernal issued a WRITTEN Directive from the Registrar to Respondent because he determined that Respondent failed to complete the project and the work that had been performed failed to meet workmanship standards. Specifically, Respondent was ordered to complete the project per contract, executed change orders, local building codes and manufacturers’ installation instructions. Respondent was put on notice that it had until March 25, 2021, to notify the Registrar of its compliance with the WRITTEN Directive or face discipline pursuant to Ariz. Rev. Stat. §§ 32-1154(A)(22) and 32-1154(E).

Investigator Bernal testified that Respondent did not comply with the Written Directive.

Raina Johnsen testified that Respondent began work on the project on July 31, 2020, and stopped work on November 26, 2020. Ms. Johnsen testified that Mr. Walters told her that he was unable to secure workers to complete work. Ms. Johnsen testified that Respondent performed some electrical and plumbing work on March 27, 2021, however, the project is still not complete.

Complaint No. 2021-00747

On February 22, 2021, the Registrar received a Complaint against Respondent filed by Anahi Conroy. In her Complaint, Ms. Conroy alleged that Respondent had abandoned the parties’ contract for the construction of a pool. The Complaint indicates that the contract price was $40,000.00 and the Conroys paid Respondent $32,000.00.

On February 26, 2021, the Registrar issued a Jobsite Inspection Notice to the parties, advising that a jobsite inspection would be conducted on March 17, 2021.

On March 12, 2021, Ms. Conroy emailed Investigator Bernal to advise that Respondent had completed the shotcrete.

On March 16, 2021, the Conroys sent an email to Investigator Bernal delineating the items that were in need of completion.

On March 17, 2021, Investigator Bernal conducted a jobsite inspection. Mr. Walters was present and according to Investigator Bernal’s Jobsite Inspection Notes, Mr. Walters “agreed and admitted that all complained items were not finished, and that the project was not completed.” Investigator Bernal took photographs of the jobsite.

Ms. Conroy testified that Respondent began work on the project on June 1, 2020, and stopped work on the project on July 1, 2020. Ms. Conroy testified that she filed the Complaint against Respondent with the Registrar on February 22, 2021, and Respondent applied the shotcrete approximately a week after she filed the Complaint. Ms. Conroy testified that Respondent has performed no other work and the project remains incomplete.

Complaint No. 2021-01076

On March 11, 2021, the Registrar received a Complaint against Respondent filed by Christopher Davis. In the Complaint, Mr. Davis alleged that Respondent had abandoned the project and failed to obtain permits for the pool construction. The Complaint indicates that the contract price was $28,300.00 and that Mr. Davis paid Respondent $16,980.00.

Investigator Steven Avila was assigned to investigate Mr. Davis’ Complaint. Mr. Davis forwarded to Investigator Avila a June 16, 2020 email he sent to Respondent documenting the abandonment of the project and the failure by Respondent to obtain the required permits.

On March 30, 2021, Investigator Avila conducted a jobsite inspection and found that the pool was not complete. Mr. Walters was present for the inspection and admitted to Investigator Avila that he had not obtained the required permits and that the project was not complete.

Mr. Davis testified that the job had been red-tagged by the city inspector because permits had not been obtained by the original contractor. Mr. Davis testified that on April 21, 2020, Mr. Walters was told by the city inspector that the permits would need to be obtained and after that date, Respondent did not perform any work or obtain the proper permitting.

Complaint No. 2021-00855

The Registrar received a Complaint against Respondent filed by Joy R. Hein. In the Complaint, Ms. Hein alleged that Respondent had abandoned a pool construction and landscaping project. According to the Complaint, Respondent began work on the project on July 28, 2020, and stopped working on the project on February 26, 2021.

Investigator Avila was assigned to investigate Ms. Hein’s Complaint. Investigator Avila testified that a jobsite inspection had not yet been conducted, however, he is aware that the project has not been completed.

Complaint No. 2021-01189

On March 19, 2021, the Registrar received a Complaint against Respondent filed by Ryan Michael Altieri. In his Complaint, Mr. Altieri alleged that Respondent had abandoned the parties’ contract for the remodel of a pool and that work was poorly performed. The Complaint indicates that the contract price was $19,900.00 and that Mr. Altieri paid Respondent $12,950.00. The record contains copies of two checks written by Mr. Altieri to Respondent totaling $12,950.00.

On March 22, 2021, the Registrar issued a Jobsite Inspection Notice to the parties, advising that a jobsite inspection would be conducted on April 15, 2021.

On March 24, 2021, the Registrar issued a letter to the parties advising that the jobsite inspection was rescheduled to April 1, 2021.

On April 1, 2021, Investigator Steve Klein conducted a jobsite inspection. Mr. Walters was present. Investigator Klein testified that Mr. Walters stated that Respondent was terminated from the job. Investigator Klein verified that the project was incomplete.

Mr. Altieri testified that he filed the Complaint on March 19, 2021, that Respondent began work on the project on February 15, 2021, and stopped work on the project in mid-February 2021. Mr. Altieri testified that Mr. Walters told him that his workers were unreliable. Mr. Altieri testified that there were at least ten occasions on which no one showed up to perform work after having been scheduled to do so. Mr. Altieri testified that the electrical did not pass inspection.

Robert Stirling, Assistant Chief Counsel for the Registrar, testified regarding the Order of Summary Suspension and the alleged violations therein, as well as the Supplements thereto and the alleged violations therein.

Mr. Walters did not present any testimonial or documentary evidence at hearing and did not cross examine any of the Registrar’s witnesses.

Administrative Notice is taken of Respondent’s prior License record, for License No. 322639, as reflected on the Registrar’s public website on April 16, 2021. Such prior License record reflects that Respondent’s license is currently suspended and has been suspended since March 17, 2021. The record also reflects that there are six open complaints against Respondent’s license, all of which are presumed to be related to this matter, as well as two complaints resulting in discipline, and twelve resolved/settled complaints. Respondent has an active surety bond that was issued through Western Surety Company effective May 18, 2020, of which $9,000.00 remains available.

CONCLUSIONS OF LAW

The Registrar has jurisdiction over this matter pursuant to Ariz. Rev. Stat. §§ 32-1101 et seq. and 32-1154(A). The matter was properly brought before the Office of Administrative Hearings pursuant to Ariz. Rev. Stat. §§ 41-1092 et seq.

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

“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.”

Respondent’s suspended license does not deprive Complainants of their right to prosecute the Complaints or prevent the Registrar from determining the merits of the Complaints.

The Registrar bears the burden of proof to establish cause to discipline Respondent’s license by a preponderance of the evidence. Respondent bears the burden to establish factors in mitigation of the penalty and affirmative defenses by the same evidentiary standard.

The standard of proof on all issues in this matter is that of 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. Admin. Code R4-9-108 requires that “[a]ll work shall be performed in a professional and workmanlike manner” and that “[a]ll work shall be performed in accordance with any applicable building codes and professional industry standards.”

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)(2) includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license:

Departure from or disregard of:

(a) Plans or specifications in any material respect that is prejudicial to another without consent of the owner or the owner's duly authorized representative and without the consent of the person entitled to have the particular construction project or operation completed in accordance with such plans and specifications and code.

(b) A building code of this state or any political subdivision of this state in any material respect that is prejudicial to another.

Ariz. Rev. Stat. § 32-1154(A)(3) includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, “[v]iolation of any rule adopted by the registrar.”

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 a 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)(9)(a) includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, “[a]iding or abetting a licensed or unlicensed person.”

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.” Ariz. Rev. Stat. § 32-1158(A) provides:

Any contract in an amount of more than one thousand dollars entered into between a contractor and the owner of a property to be improved shall contain in writing at least the following information:

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

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

3. The date the parties entered into the contract.

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

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

6. 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.

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

8. 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.

9. 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. Rev. Stat. § 32-1154(A)(17) includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, “[c]ontracting or offering to contract or submitting a bid while the license is under suspension or while the license is on inactive status.”

Ariz. Rev. Stat. § 32-1154(A)(22) holds, in pertinent part, that “[a] holder of a license may not fail to take appropriate corrective action to comply with this chapter or rules adopted pursuant to this chapter without valid justification within a reasonable period of time after receiving a written directive from the registrar.”

Here, the material facts are not in dispute.

It is undisputed that Respondent entered into pool construction and/or remodeling contracts with Ms. Orent, the Johnsens, the Conroys, Mr. Davis, Ms. Hein, and Mr. Altieri, and that Respondent did not complete those projects or perform its work in a professional and workmanlike manner.

Regarding the Orent project, the record establishes that Respondent contracted with Ms. Orent to construct a pool, received monies from Ms. Orent for that purpose, and thereafter abandoned the project. The record further establishes that Respondent failed to comply with a Written Directive from the Registrar and its contract failed to contain the minimum elements required for contracts.

Regarding the Johnsen project, the record establishes that Respondent abandoned the project, failed to perform work in a professional and workmanlike manner, failed to comply with a Written Directive from the Registrar, and performed work or contracted to have work performed on the Johnsen project after Respondent received notice that its license had been suspended. The record further establishes that Respondent failed to complete the project for the contract price.

Regarding the Conroy project, the record establishes that Respondent abandoned the contract, failed to perform work in a professional and workmanlike manner, and failed to complete the project for the contract price.

Regarding the Davis project, the record establishes that Respondent abandoned the project, failed to obtain the required permit, failed to perform its work in a professional and workmanlike manner, failed to complete the project for the price stated in the contract, and its contract failed to contain the minimum elements required for contracts.

Regarding the Altieri project, the record establishes that Respondent abandoned the project, failed to perform its work in a professional and workmanlike manner as evidenced by its failure to complete the project, and failed to complete the contract for the price stated in the contract. Also, electrical work was performed on the Altieri project which did not pass inspection. Therefore, Respondent departed from or disregarded building codes, prejudicing Mr. Altieri. However, no evidence was presented at hearing to establish that Respondent subcontracted the electrical work to an unlicensed individual or a contractor who does not hold a license allowing electrical work. Consequently, it cannot be determined whether Respondent aided or abetted a licensed or unlicensed person.

The Hein Complaint had not yet been investigated at the time of the hearing.

Although Respondent appeared for hearing, Respondent did not establish any affirmative defenses or provide evidence in mitigation to refute the Registrar’s evidence or justify its inaction in these matters.

Because the Registrar established by a preponderance of the evidence that Respondent violated this State’s contracting laws as set forth above, the Registrar has also established cause for it to take disciplinary action against Respondent’s contractor license.

Considering Respondent’s conduct in these matters, the Registrar shall revoke Respondent’s license to ensure the protection of the public’s welfare.

RECOMMENDED ORDER

Based on the foregoing,

IT IS RECOMMENDED that on the effective date of the Final Order in this matter, Bravado Pools and Landscape, LLC’s License No. 322639 shall be revoked.

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 forty (40) days from the date of that certification.

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

/s/ Sondra J. Vanella

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors

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