ALJDEC decisions subject to certification as final

2021A-04832-CHC-ROC · Registrar of Contractors · 2022-03-07

-54864001

001

-137160-45720000 IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Debbie Ann Peterson,

COMPLAINANT,

Gomez Pools & Service, LLC

License No. ROC 316303,

RESPONDENT.

No. 2021A-04832-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: February 14, 2022

APPEARANCES: Complainant Debbie Ann Peterson appeared on behalf of herself. Jerry Gomez appeared on behalf of Respondent Gomez Pools & Service, LLC.

ADMINISTRATIVE LAW JUDGE: Velva Moses-Thompson

_____________________________________________________________________

FINDINGS OF FACT

1. Respondent Gomez Pools & Service, LLC (Gomez Pools) holds license number 316303 issued by the Registrar of Contractors (ROC).

2. Jerry Gomez is the qualifying party for Gomez Pools.

3. In February of 2021, Gomez Pools agreed to install a new pool at the home of Ms. Peterson for the amount of $49,000. Ms. Peterson paid Gomez Pools $20,000 to begin work. The contract shows that Gomez Pools expected to complete the project by July of 2021.

4. Gomez Pools began working on the engineering that would be required for a permit. However, Gomez Pools had not performed any work at Ms. Peterson’s home.

5. In July of 2021, the ROC suspended the license of Gomez Pools.

6. In August of 2021, the ROC revoked the license of Gomez Pools.

7. Gomez Pools did not install the pool.

8. In September of 2021, the ROC received an abandonment complaint from Ms. Peterson.

9. ROC Investigator Cliff Corlett conducted a job-site inspection.

Mr. Peterson and Mr. Gomez were present for the inspection. Investigator Corlett observed that Gomez Pools failed to install the pool. Mr. Gomez agreed to issue a refund to Ms. Peterson.

10. In September of 2021, Gomez Pools issued a post-dated check in the amount of $20,000 to Ms. Gomez. The check was dated December 20, 2021.

11. On October 21, 2021, the ROC directed Gomez Pools to issue a refund to Ms. Peterson no later than 5:00 p.m. on November 5, 2021, through a formal Directive. Gomez Pools failed to pay Ms. Peterson by the due date.

12. On November 23, 2021, the ROC issued a Citation against the license of Gomez Pools for alleged violations of Arizona Revised Statutes (A.R.S.) section 32-1154(A)(1) and (22).

13. Gomez Pools filed a timely answer to the Citation and stated that the parties had entered into an agreement wherein Gomez Pools would reimburse

Ms. Peterson by December 20, 2021.

14. The December 20, 2021 check did not clear.

15. The matter was referred to the Office of Administrative Hearings for an evidentiary hearing.

16. A hearing was held on February 14, 2022.

17. At hearing, Ms. Peterson explained that Gomez had been holding her payment for over a year and the cost to install a pool had increased. Mr. Peterson contended that when Gomez Pools learned three months after receiving her $20,000 payment that its license had been suspended, Gomez Pools should have notified

Ms. Peterson that its license had been suspended and refunded her $20,000 payment.

18. Investigator Corlett testified regarding his investigation of the complaint and the issuance of the Directive.

19. It was undisputed that Gomez Pools failed to install the pool as required under the contract. Mr. Gomez did not dispute that he agreed to reimburse Ms. Peterson. Mr. Gomez testified to the effect that construction was delayed because Ms. Peterson changed the installation site for the pool. Mr. Gomez stated that the new site required a new design. Mr. Gomez explained that he has been unable to pay Ms. Peterson due to litigation costs in a separate legal matter.

20. Administrative notice is taken of Respondent’s prior License record on March 7, 2022. Such prior License record reflects that Respondent’s License No. 316303 is active. Such prior License record reflects that Respondent’s License No. 316303 was first issued on November 9, 2017 and is renewed through November 30, 2021. Such prior License record also reflects that there are three open complaints against Respondent, one complaint that resulted in discipline against Respondent’s license, and eight complaints that were resolved or settled by Respondent or withdrawn by complainant after the issuance of a corrective work order or formal citation.

CONCLUSIONS OF LAW

1. This matter lies within the Registrar’s jurisdiction. See Ariz. Rev. Stat. section 32-1101 et seq.

2. Complainant bears the burden of proof to establish Respondent’s statutory violation by a preponderance of the evidence. See Ariz. Rev. Stat. section

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 section 5 (1960).

3. The Administrative Law Judge may consider the ROC’s administrative record. See Ariz. Admin. Code § R4-9-118.

4. The preponderance of the evidence shows that Gomez Pools abandoned the pool construction contract, which is a violation of Ariz. Rev. Stat. section 32-1154(A)(1).

5. The evidence presented at hearing shows that the ROC directed Respondent to issue a refund to Complainant by November 5, 2021 and failed to do so. The preponderance of the evidence shows that Respondent violated Ariz. Rev. Stat. section 32-1154(A)(22).

RECOMMENDED ORDER

Based on the foregoing, it is recommended that on the effective date of the Order, the Registrar shall suspend License No. 316303 issued to Gomez Pools & Service, LLC

for three days.

It is further recommended that the Registrar require Respondent to pay the sum of $500.00 as a civil penalty pursuant to Ariz. Rev. Stat. section 32-1154(E).

It is further recommended that if Respondent fails to pay the entire amount of the civil penalty on or before thirty days following the effective date of the Registrar’s final order, the Registrar revoke Respondent’s license, effective on such deadline date.

No future license shall be issued to any entity consisting of persons associated with Respondent, as defined in Ariz. Rev. Stat. section 32-1101(A)(7), unless Respondent tenders payment of any outstanding prior civil penalty.

Done this day, March 7, 2022.

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 is forty days after the date of that certification.

/s/ Velva Moses-Thompson

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors