ALJDEC decisions subject to certification as final

2021A-04309-CHC-ROC · Registrar of Contractors · 2021-12-15

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Sarah Louise Mitson,

COMPLAINANT

American Pools, LLC

License No. ROC 319458,

RESPONDENT

No. 2021A-04309-CHC-ROC

ADMINISTRATIVE LAW JUDGE

DECISION

HEARING: December 10, 2021

APPEARANCES: Robert Mann, Esq. represented Complainant Sarah Mitson who was present with her husband. Arizona 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 February 26, 2021, Sarah Louise Mitson (“Complainant”) contracted with Respondent for Respondent to construct a pool at Complainant’s residence.

On or about September 1, 2021, the Registrar received a Complaint against Respondent from Complainant alleging abandonment of the project. According to the filed Complaint, the contract price was $46,842.13 and Complainant paid Respondent $30,889.31.

The Registrar assigned the Complaint to Investigator Ruben Perez. Investigator Perez conducted a jobsite inspection on September 16, 2021. Investigator Perez drafted Jobsite Inspection Notes that document the following in pertinent part:

Building permit #B21-00511 was applied for with local jurisdiction on 05/06/2021 for this swimming pool however, it was not paid for and obtained. There is currently no building permit for this project.

Compliance Item 1: License suspended. Did not obtain a permit before starting work. Poor communication. Constant no-shows. Pool should have been complete between 12-16 weeks from excavation and now on week 20 without much work done.

Investigator’s Observation: Contract for this swimming pool and spa is dated 02/26/2021. No building permit was obtained for this project. Swimming pool was observed incomplete (underground plumbing and rebar installed only) therefore, I am citing and referring to legal.

Governing Rule: Workmanship Rule: ARS 32-1154(A)(1) and ARS 32-1154(A) (3) specifically to Rule 4-9-108

All errors in original.

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.

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 10, 2021, at 1:00 p.m. On the date and at the time set for hearing, Robert Mann, Esq. represented Complainant who was present with her husband. 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 information regarding a performance bond.

Complainant testified regarding the exhibits that she previously submitted to the Office of Administrative Hearings, including the warranty deed, the parties’ contract, the payments she made to Respondent, the email she received from Yuma County regarding the deficiencies concerning the permit request, as well as her timeline of events for the project and photographs depicting the current state of the project.

Administrative notice is taken of Respondent’s prior License record on December 14, 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 thirteen (13) open complaints, seven (7) resolved/settled complaints, and twenty-one (21) 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 provision providing the purchaser the opportunity to request standard contractor's payment and performance bonds. 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.

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.

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-137160-45720000Done this day, December 15, 2021.

/s/ Sondra J. Vanella

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors

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-137160-45720000