ALJDEC decisions subject to certification as final

2021A-04330-CHC-ROC · Registrar of Contractors · 2021-12-21

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Robert Dean Lego,

COMPLAINANT

American Pools LLC

License No. ROC 319458,

RESPONDENT

No. 2021A-04330-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: December 7, 2021

APPEARANCES: Complainant Robert Dean Lego appeared on his own behalf. Sarah Wagner, Co-Owner, appeared on behalf of Respondent American Pools LLC.

ADMINISTRATIVE LAW JUDGE: Tammy L. Eigenheer

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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 January 15, 2021, Robert Dean Lego (Complainant) signed a contract with Respondent for the construction of a swimming pool at his property. The contract did not include Respondent’s business address, the name and mailing address of the owner, the jobsite address, the estimated date of completion, or a statement that the owner had the right to file a written complaint with the Registrar. The contract did not advise Complainant of the opportunity to request contractor’s payment and performance bonds, the right to receive written material setting forth the provisions of A.R.S. § 32-1158.01, or the purchaser’s rights under title 44, chapter 15.

On or about September 2, 2021, the Registrar received a Complaint against Respondent from Complainant alleging abandonment with respect to the project.

The Registrar assigned the complaint to Investigator Ruben Perez. Investigator Perez noted that Respondent’s license was suspended at the time of the jobsite inspection. Accordingly, Respondent could not perform any corrective work on the project.

Investigator Perez referred 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)(3), namely A.A.C. R4-9-108; and A.R.S. § 32-1154(A)(12), namely A.R.S. § 32-1158 and A.R.S. § 32-1158.01.

Investigator Perez testified as to his involvement in the handling of this complaint.

Complainant testified that Respondent stopped working on his project in August 2021. Complainant indicated he had paid $47,600.00 toward the total contract amount of $56,000.00.

Ms. Wagner testified that Respondent experienced delays due to supply and labor shortages, but work on the project was underway when its license was suspended.

Administrative notice is taken of Respondent’s prior License record on December 16, 2021. Such prior License record reflects that Respondent’s License No. 319458 was first issued on May 2, 2018, and has been revoked since October 18, 2021. Such prior License record also reflects that there were 7 open complaints, 5 resolved/settled complaints, and 23 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. See A.R.S. § 41-1092.07(G)(2); A.A.C. R2-19-119(A) and A.A.C. R2-19-119(B)(1); see also Vazzano v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952). “A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.” Morris K. Udall, Arizona Law of Evidence § 5 (1960).

The evidence established that Respondent submitted a bid for Complainant’s project and did not perform the work in the bid. Accordingly, Complainant established that Respondent abandoned the contract and failed to complete the project in a professional and workmanlike manner in violation of A.R.S. § 32-1154(A)(1) and A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108(A).

The evidence established that Respondent’s contract failed to include the required elements of a contract set forth in A.R.S. § 32-1158(A). Therefore, Complainant established that Respondent failed to comply with the Registrar’s statute in violation of A.R.S. § 32-1154(A)(12).

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

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.

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 40 days from the date of that certification.

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-137160-45720000Done this day, December 21, 2021.

/s/ Tammy L. Eigenheer

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors-54864001

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-137160-45720000