ALJDEC decisions subject to certification as final

2021A-04303-CHC-ROC · Registrar of Contractors · 2021-12-10

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Mary Louise Sugawa,

COMPLAINANT

American Pools, LLC

License No. ROC 319458,

RESPONDENT

No. 2021A-04303-CHC-ROC

ADMINISTRATIVE LAW JUDGE

DECISION

HEARING: December 8, 2021

APPEARANCES: Complainant Mary Louise Sugawa appeared on her own behalf. Registrar of Contractors Investigator Ruben Perez appeared as a witness. Respondent American Pools, LLC failed to appear.

ADMINISTRATIVE LAW JUDGE: Sondra J. Vanella

FINDINGS OF FACT

American Pools, LLC (“Respondent”) is the holder of License No. 319458 issued by the Arizona Registrar of Contractors (“Registrar”).

On or about April 16, 2021, Mary Louise Sugawa (“Complainant”) contracted with Respondent for Respondent to construct a pool at Complainant’s residence. The contract price was $25,719.84. On or about April 21, 2021, the parties executed a change order to the pool contract for Respondent to install artificial grass and concrete curbing, for a price of $7,100.00. The total contract price was $32,819.84. Complainant paid Respondent $23,531.40.

On or about September 1, 2021, the Registrar received a Complaint against Respondent from Complainant alleging abandonment of the project.

The Registrar assigned the Complaint to Investigator Ruben Perez. Investigator Perez conducted a jobsite inspection on September 15, 2021. Investigator Perez drafted Jobsite Inspection Notes that document the following in pertinent part:

A building permit was not obtained with local jurisdiction for this swimming pool. Respondent also contracted out of scope to landscape back yard.

This case is related to case 2021-04338 documenting contracting while suspended. Complained about items were listed in narrative form. They were condensed to the below compliance items.

Compliance Item 1: Swimming pool was left incomplete

Investigator’s Observation: The contract for this swimming pool is dated

04/16/2021. Pool project was started without a building permit. Swimming pool was observed incomplete (underground plumbing and rebar installed only) therefore, I am citing and referring to legal.

Compliance Item 2: American Pools contracted to do landscaping job, was paid in full and no work was done.

Investigator’s Observation: Respondent contracted out of scope to landscape back yard and was paid in full. This project is incomplete (no work done), therefore I am citing and referring to legal.

Investigator Perez explained that he did not issue a Written Directive because Respondent’s license was suspended at the time the Complaint was filed, and therefore, Respondent could not perform any work.

Investigator Perez forwarded the matter to the Registrar’s Legal Department. The Registrar issued a Citation against Respondent, charging possible violations of A.R.S. § 32-1154(A)(1), A.R.S. § 32-1154(A)(2)(a), A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108(a), A.R.S. § 32-1154(A)(12), namely A.R.S. § 32-1158 and A.R.S. § 32-1158.01, and A.R.S. § 32-1154(A)(16).

The Registrar referred the matter to the Office of Administrative Hearings, an independent state agency, for an evidentiary hearing.

The hearing of this matter was scheduled to convene on December 8, 2021, at 9:00 a.m. On the date and at the time set for hearing, Complainant appeared on her own behalf. Respondent did not appear through an authorized member, employee, or attorney. Respondent did not request that the hearing be continued. Because Respondent failed to appear, Respondent did not present any evidence to defend its license.

Investigator Perez testified consistently with the findings contained in his Jobsite Inspection Notes. Investigator Perez testified that Respondent failed to obtain a permit for the pool construction and Respondent left the project with the rebar and plumbing exposed to the elements. Investigator Perez also testified that Respondent’s contract failed to include information regarding how to file a complaint with the Registrar, and further, that the parties’ contract was lacking a payment schedule. Investigator Perez testified that Respondent contracted to install artificial grass, however, landscaping is beyond the scope of Respondent’s license.

Complainant testified that she hired Respondent on April 16, 2021, and paid Respondent a $1,000.00 deposit on that date to commence construction in June 2021. Respondent began work on June 9, 2021. Complainant thereafter made additional payments to Respondent. Complainant testified that Respondent “dug a hole” and installed rebar and plumbing. Thereafter, Respondent stopped working on the project until August 2021, when Respondent returned and constructed “a wall.” Thereafter, Respondent did not perform any further work and Complainant has been left with a “big and dangerous hole in the backyard.”

Administrative notice is taken of Respondent’s prior License record on December 8, 2021. Such prior License record reflects that Respondent’s License No. 319458 was first issued on May 2, 2018, and is revoked. Such prior License record also reflects that there are fifteen (15) open complaints, seven (7) resolved/settled complaints, and twenty (20) 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. “A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.”

The evidence established that Respondent abandoned its contract with Complainant without legal excuse. Therefore, Complainant established that Respondent is in violation of A.R.S. § 32-1154(A)(1).

The evidence established that Respondent failed to obtain the required permit for the construction of the pool. Therefore, Complainant established that Respondent materially departed from plans and specifications in such a way that was prejudicial to Complainant, in violation of A.R.S. § 32-1154(A)(2)(a).

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 Respondent failed to include in its contract, the advisement that a property owner has the right to file a written complaint with the Registrar. Therefore, Complainant established that Respondent failed to comply with the Registrar’s statute in violation of A.R.S. § 32-1154(A)(12), namely A.R.S. § 32-1158.

The evidence established that Respondent failed to include in its contract, the required payment provisions. Therefore, Complainant established that Respondent failed to comply with the Registrar’s statute in violation of A.R.S. § 32-1154(A)(12), namely A.R.S. § 32-1158.01.

The evidence established that Respondent contracted beyond the scope of its license when it contracted to perform landscaping, specifically the installation of artificial grass. Therefore, Complainant established that Respondent is in violation of A.R.S. § 32-1154(A)(16).

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. 319458.

It is further recommended that, on or before thirty (30) days after the effective date of the final order, Respondent shall provide a sample contract to the Registrar to demonstrate that it has amended its contracts to include all of the terms required by A.R.S. §§ 32-1158(A) and 1158.01. If Respondent fails to establish to the Registrar that it has brought its contracts into compliance with A.R.S. §§ 32-1158(A) and 1158.01 within thirty (30) days, its contractor’s license shall be suspended until it demonstrates that it has done so.

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.

-54864001

001

-137160-45720000Done this day, December 10, 2021.

/s/ Sondra J. Vanella

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors

-54864001

001

-137160-45720000