ALJDEC decisions subject to certification as final

2021A-03095-OMC-ROC · Registrar of Contractors · 2021-07-29

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Arizona Registrar of Contractors,

COMPLAINANT

Gomez Pools & Service, LLC

License No. ROC 316303,

RESPONDENT

No. 2021A-03095-OMC-ROC

ADMINISTRATIVE LAW JUDGE

DECISION

HEARING: July 16, 2021

APPEARANCES: Assistant Attorney General John Tellier represented Complainant Arizona Registrar of Contractors. Robert Stirling, Assistant Chief Counsel, and Randall Crist, Building Official for the City of Yuma, appeared as witnesses for the Arizona Registrar of Contractors. Scott McCoy, Assistant City Attorney for the City of Yuma observed the proceedings. Julianne Wheeler, Esq. represented Respondent Gomez Pools & Service, LLC. Jerry Gomez was present on behalf of Gomez Pools & Service, LLC. David Gomez was present as an observer

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 9, 2017, the Arizona Registrar of Contractors (“Registrar”) issued License No. 316303, a KA-5 General Dual Swimming Pool Contractor license to Gomez Pools & Service, LLC (“Respondent”). Jerry Gomez is Respondent’s Qualifying Party.

On July 7, 2021, the Registrar issued an Order of Summary Suspension and Notice of Promptly Instituted Proceedings (“Order”) setting the above-captioned matter for hearing at 9:00 a.m. on July 16, 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 July 9, 2021, the Registrar issued a Supplemental Notice advising Respondent of the specific allegations that support the charges set forth in the Order.

Hearing Evidence

Julianne Wheeler, Esq. represented Respondent. Jerry Gomez was present on behalf of Respondent. David Gomez was present as an observer. Assistant Attorney General John Tellier represented the Registrar. The Registrar called the following witnesses: Robert Stirling, Assistant Chief Counsel for the Registrar, and Randall Crist, Building Official for the City of Yuma. Scott McCoy, Assistant City Attorney for the City of Yuma observed the proceedings.

Gomez Pools & Spas, LLC (“GPS”) held License No. 210506 until its revocation in 2007, pursuant to a default Decision and Order following dozens of complaints filed against GPS by homeowners. David Gomez, the brother of Respondent’s qualifying party, Jerry Gomez, was the only individual named on GPS’s license. GPS is still an active entity with the Arizona Corporation Commission.

On May 14, 2021, the Registrar revoked Respondent’s license, effective June 24, 2021, pursuant to a Final Administrative Decision in Case Number 2020-05077. The Final Administrative Decision accepted the Administrative Law Judge’s Decision that was issued following a full hearing on the merits at which Jerry Gomez appeared on behalf of Respondent.

Following the issuance of the Registrar’s Final Administrative Decision, Respondent requested a rehearing.

On June 28, 2021, the Registrar issued an Order Denying Respondent’s Motion for Rehearing and ordered that the effective date of Respondent’s license revocation will be August 7, 2021.

The Registrar issued the Summary Suspension in this matter based upon information obtained that indicates that notwithstanding Respondent’s impending revocation, Respondent continues to request permits for new projects. Further, during the course of its investigation the Registrar reviewed previously filed complaints against Respondent and found violations of this State’s contracting laws.

Complaint No. 2019-02246

On April 30, 2019, the Registrar received a Complaint against GPS filed by Derrick Clifton Umphlett. In his Complaint, Mr. Umphlett alleged poor work with regard to a pool remodel project undertaken by GPS. Mr. Umphlett’s Complaint indicates that both David Gomez and Jerry Gomez were the individuals representing the license. The Complaint further states that “David Gomez drew up a contract and plans and a timeline and payment plan.” The Complaint references that all but one of Mr. Umphlett’s contacts with GPS regarding the project was with David Gomez. The three payments made by Mr. Umphlett toward the contract price were checks made out to David Gomez and were dated March 22, 2018, March 28, 2018, and April 23, 2018. An addendum to the contract dated April 16, 2018, states that the parties to the contract are the Umphletts and David Gomez, and the document was signed by David Gomez.

Complaint No. 2020-05077

On October 26, 2020, the Registrar received a Complaint against GPS filed by Copper Mountain R.V. Park, LLC (“Copper Mountain”). In the Complaint, Copper Mountain alleged abandonment with regard to a pool construction project undertaken by GPS. Copper Mountain’s Complaint indicates that both David Gomez and Jerry Gomez were the individuals representing the license. The parties’ contract dated October 1, 2019, contains GPS’s name and Respondent’s license number. The receipts for payments made by Copper Mountain are signed by David Gomez and dated July 21, 2020, and August 3, 2020.

Complaint No. 2020-00583

On February 3, 2020, the Registrar received a Complaint against GPS filed by Jana Kay Martin. In the Complaint, Ms. Martin alleged poor work and abandonment with regard to a pool construction project undertaken by GPS. Ms. Martin’s Complaint indicates that both David Gomez and Jerry Gomez were the individuals representing the license. The parties’ contract dated August 30, 2019, contains GPS’s name and Respondent’s license number. The contract contains the initials, “DG”. A check for payment dated December 27, 2019, is made out to GPS.

Building Permit Applications

On May 18, 2021, “Gomez Pools” submitted an application for a building permit to the city of Yuma for a project with the jobsite address of 8637 E. 34th Ln. The application contains a contact email address of dgomez.inc@gmail. The application is initialed in several places with the initials, “DG.” The plans attached to the application contain GPS’s name.

Also on May 18, 2021, “Gomez Pools” submitted an application for a building permit to the city of Yuma for a project with the jobsite address of 531 E. Robin Lane. The application contains a contact email address of dgomez.inc@gmail. The application is initialed in several placed with the initials, “DG.” The plans attached to the application contain GPS’s name.

Randall Crist, Director of Building Safety for the City of Yuma, testified that in May 2021, Respondent submitted multiple pool construction permit applications to the City of Yuma, all of which were approved prior to receiving notification from the Registrar of the revocation of Respondent’s license. Mr. Crist testified that David Gomez contacted him on several dates to request that the permits be issued, and one of those permits was issued. Mr. Crist also testified that David Gomez requested that he write a letter to Respondent’s customers to advise them why the other permits were not issued. Mr. Crist declined to provide the requested letter. Mr. Crist testified that the plans submitted with the permit applications contain GPS’s name and GPS’s license was revoked in 2007. Mr. Crist testified consistently with the information provided in his Affidavit.

Robert Stirling, Assistant Chief Counsel for the Registrar, testified the he researched whether Respondent has worker’s compensation insurance. When Mr. Stirling ran the query on July 6, 2021, to ascertain such information, he found that Respondent did not have worker’s compensation insurance. Mr. Stirling testified that pursuant to statute, if Respondent has any employees, such as David Gomez, Respondent must have worker’s compensation insurance.

Mr. Stirling further testified regarding a pool contract for the Beecher project dated March 30, 2021. This contract contains a heading with GPS’s name and Respondent’s license number. The payments for the project consist of checks issued to GPS.

Jerry Gomez (“Mr. Gomez”) testified that when he requested that the May 2021 permits be issued, he believed Respondent would have had sufficient time to complete those projects prior to the revocation of its license. Mr. Gomez further testified that he has grown up constructing pools as his father had a pool construction business, and “pool construction is all [he] knows how to do.” Mr. Gomez explained that Yuma is a small city and “everyone knows them” and he has the “best reputation in town.” Mr. Gomez asserted that he “did not know he was violating rules by using [GPS’s name]” and Respondent would have changed the name on the contract and plan documents had he been aware. Mr. Gomez testified that he has since made the change.

Mr. Gomez testified regarding the positive reviews for GPS.

Mr. Gomez testified that Respondent was not represented by counsel at the hearing that resulted in the revocation of Respondent’s license and that the dispute with the complainant in that matter has since been resolved.

Mr. Gomez testified regarding his qualifications as a pool contractor and further testified that he takes pride in the work that he does.

Mr. Gomez testified regarding the Complaint filed by Mr. Umphlett. Mr. Gomez testified that Mr. Umphlett did not pursue his Complaint because he realized that the leak that was the subject of the Complaint was caused by the roots of a tree. Mr. Gomez explained that Mr. Umphlett has been a pool service customer of David Gomez for some time, and that Mr. Umphlett wrote checks to David Gomez, rather than Respondent, because of this existing relationship. Mr. Gomez further explained that customers “get the companies confused” and insisted that Respondent’s license was used to perform the construction work, the checks written by customers were deposited into Respondent’s bank account, and the monies were used to complete the respective projects.

Mr. Gomez testified that he is the individual who bids the projects for Respondent, he hires the crews to perform the work, and he pays them in cash. Mr. Gomez explained that it is common in his industry to utilize workers from a pool of laborers who work on a daily basis, rather than as employees. Mr. Gomez testified that this is how he has procured labor for Respondent and that Respondent does not have any employees. Mr. Gomez asserted that David Gomez “volunteers” his time for Respondent and that Respondent pays for David Gomez’s cell phone and gas. Mr. Gomez explained that David Gomez’s wife works for a realty company and she is the primary source of income for his family. Mr. Gomez testified that Respondent now has worker’s compensation insurance.

Mr. Gomez testified that he was not allowing David Gomez to use Respondent’s license. However, Mr. Gomez acknowledged that he was utilizing GPS’s name “because everyone knows the business.” When questioned as to why David Gomez’s name appears on the filed complaints addressed above, Mr. Gomez testified that he utilized David Gomez “for a second opinion.” Mr. Gomez asserted that David Gomez did not have any business interactions with any of the complainants, and he was only named on the filed complaints because people associated David Gomez with Respondent because he is Mr. Gomez’s brother.

Administrative Notice is taken of Respondent’s prior License record for License No. 316303, as reflected on the Registrar’s public website on July 28, 2021. Such prior License record reflects that Respondent’s license is currently suspended and has been suspended since July 7, 2021. The record also reflects that there are two open complaints against Respondent’s license, as well as one complaint resulting in discipline, and six resolved/settled complaints.

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.”

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. Rev. Stat. § 32-1154(A)(4) includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, “[f]ailure to comply with the statutes or rules governing social security, workers' compensation or unemployment insurance.”

Ariz. Rev. Stat. § 32-1154(A)(9) includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license:

Attempting to evade this chapter by:

(a) Aiding or abetting a licensed or unlicensed person.

(b) Acting or conspiring with a licensed or unlicensed person.

(d) Acting as agent, partner, associate or otherwise of a licensed or unlicensed person.

Ariz. Rev. Stat. § 32-1154(A)(14) includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, “[a]cting in the capacity of a contractor under any license issued under this chapter in a name other than as set forth on the license.”

It is undisputed that GPS’s contracting license was revoked in 2007, and that David Gomez was the only individual named on GPS’s license. The credible evidence of record established that Respondent was executing contracts and submitting plans for pool construction that contained the name of GPS, rather than Respondent’s name, and that Respondent’s license number appeared on the contracts. The credible and probative evidence of record established that Respondent knew that David Gomez was utilizing Respondent’s license number and was contracting in the name of GPS. David Gomez was named on the complaints filed with the Registrar in regard to work undertaken with Respondent’s license number. Further, David Gomez’s name, initials, and email address are set forth in the various contract documents and permit applications. Also, the credible evidence of record established that David Gomez submitted permit applications to the City of Yuma for projects to be undertaken with Respondent’s license number and David Gomez was the individual with whom Mr. Crist had interaction regarding those permit applications. Moreover, the checks paid by Respondent’s customers for pool construction, were written to David Gomez. The credible and probative evidence of record established that Respondent allowed David Gomez to use Respondent’s license to contract in a revoked entity’s name and to receive payment for such.

The Administrative Law Judge does not find Mr. Gomez’s testimony credible regarding his assertion that David Gomez was not an employee of Respondent and that Respondent only paid for David Gomez’s cell phone and gas, and the credible and undisputed evidence of record established that Respondent did not have worker’s compensation insurance.

The credible, substantial and probative evidence of record established by a preponderance of the evidence the above-charged statutory violations.

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 actions 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 further disciplinary action against Respondent’s contractor license in addition to the pending license revocation. Considering Respondent’s conduct, the Registrar shall uphold the summary suspension in this matter 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, the Registrar uphold the Order Summarily Suspending Gomez Pools & Service, LLC’s License No. 316303.

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, July 29, 2021.

/s/ Sondra J. Vanella

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors-54864001

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-137160-45720000