ALJDEC decisions subject to certification as final

2021A-04496-CHC-ROC · Registrar of Contractors · 2021-12-28

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Victor Hernandez,

COMPLAINANT

American Pools LLC

License No. ROC 319458,

RESPONDENT

No. 2021A-04496-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: December 9, 2021

APPEARANCES: Complainant Victor Hernandez appeared on his own behalf. Respondent American Pools LLC did not appear.

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 May 10, 2021, Victor Hernandez (Complainant) signed a contract with Respondent for the construction of a swimming pool. The contract from Respondent did not include an estimated date of completion, an advisement that Complainant had a right to file a complaint with the Registrar, a provision that Complainant could request a performance bond, payment provisions as outlined in A.R.S. § 32-1158.01(A)(2), or a provision that Complainant had the right to receive written material advising him of the provisions of A.R.S. § 32-1158.01,

On or about September 13, 2021, the Registrar received a Complaint against Respondent from Complainant alleging poor work with respect to the project.

The Registrar assigned the complaint to Investigator Ruben Perez. After a jobsite inspection, Investigator Perez referred the matter to legal because Respondent’s license had been suspended since August 27, 2021.

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. § 32-1154(A)(12), namely 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 Registrar issued a Notice of Hearing, setting a hearing at 9:00 a.m. on December 9, 2021. The Registrar mailed copies of the Notice of Hearing to Respondent at its address and email address of record.

On or about December 5, 2021, the Administrative Law Judge issued an order advising the parties that the hearing would be conducted via Google Meet and included the information needed to connect to the hearing.

A hearing was held on December 9, 2021. Complainant testified on his own behalf.

Respondent did not request that the hearing be continued. Although the start of the hearing was delayed 15 minutes, Respondent did not appear through an authorized member, employee, or attorney. Consequently, Respondent did not present any evidence to defend its license.

Investigator Perez testified as to his observations of the jobsite and the basis of the written directive. Investigator Perez noted that the building permit issued was canceled when the check Respondent used to pay for it was returned for insufficient funds. Investigator Perez indicated the canceled permit was the basis of the abandonment and deviation from city building requirements charges.

Complainant testified that he had paid $27,000.00 towards the project and had only a hole in the ground with rebar and some pipes installed.

Administrative notice is taken of Respondent’s prior License record on December 28, 2021. Such prior License record reflects that Respondent’s License No. 319458 was first issued on May 2, 2018, and was revoked on October 18, 2021. Such prior License record also reflects that there were 8 open complaints, 7 resolved/settled complaints, and 26 prior 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.

Respondent’s revoked license does not deprive Complainant of his right to prosecute his complaint or prevent the Registrar from determining the merits of the complaint. See A.R.S. § 32-1154(D).

The copies of the Notice of Hearing that the Registrar mailed to Respondent at its address and email address of record were reasonable and Respondent is deemed to have received notice of the hearing. A.R.S. §§ 41-1092.04 and 41-1092.05(D).

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 Vazanno 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 performed work on the project without valid permits in place from the City of Yuma. Therefore, Complainant established that Respondent disregarded building codes of a political subdivision in violation of A.R.S. § 32-1154(A)(2)(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 pool 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 28, 2021.

/s/ Tammy L. Eigenheer

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors

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-137160-45720000