ALJDEC decisions subject to certification as final

2021A-05365-CHC-ROC · Registrar of Contractors · 2022-04-20

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Terry Koch,

COMPLAINANT.

v.

Supercool Services LLC

License No. ROC 324412, 324754

RESPONDENT.

No. 2021A-05365-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: March 31, 2022

APPEARANCES: Joseph G. Urtuzuastegui III, Esq. appeared on behalf of Complainant Terry Koch. Rebecca Avelar appeared on behalf of Respondent Supercool Services, LLC.

ADMINISTRATIVE LAW JUDGE: Velva Moses-Thompson

_____________________________________________________________________

FINDINGS OF FACT

On February 23, 2022, the Registrar of Contractors, (Registrar),

issued a Notice of Hearing setting the above-captioned matter for hearing on March 31, 2022, by the Office of Administrative Hearings (OAH) in Phoenix, Arizona.

2. The Notice of Hearing shows that the hearing was set to consider the

charges made in the Citation and Complaint. Through the Citation, the Registrar alleges that Respondent Supercool Services, LLC (Supercool) may have violated Ariz. Rev. Stat. section 32-1154(3) (specifically, Ariz. Admin. Code section R4-9-108(a)); Ariz. Rev. Stat. sections 32- 1154(A)(1), (2)(b), and (22).

3. The Citation shows that if the Administrative Law Judge finds that the alleged charges are valid, the Registrar may suspend or revoke the license of Supercool.

4. Supercool holds license numbers 324412 and 324754 issued by the Registrar.

5. Rebecca Avelar is an owner of Supercool.

6. On or about August 10, 2021, Supercool agreed to remodel a home owned by Ms. Koch for the amount of $260,000. See Exhibit 6. Ms. Koch paid Supercool $210,547 for the project.

7. Ms. Koch intended to sell the home to a new owner. See Exhibit 6.

8. On or about August 13, 2021, Supercool started work.

9. On or about October 22, 2021, Ms. Koch filed a complaint with the Registrar alleging poor work on the part of Supercool.

10. On or about November 18, 2021, Registrar Investigator Steven Avila conducted a job-site inspection.

11. On November 28, 2021, the City of Phoenix order4ed Supercool stop work on the project.

12. On November 3, 2021, the Registrar issued a Directive to Supercool that provided, in relevant part, as follows:

After investigation, the Registrar determined that you failed to meet the requirements of A.R.S. § 32-1154(A), and now issues this Directive requiring you to take appropriate corrective action. Failure to comply with this Directive constitutes a violation of A.R.S. § 32-1154(A)(22) and may result in the issuance of a citation, discipline of your license, and a civil penalty pursuant to A.R.S. § 32-1154(E) of up to $500.00. You must notify the Registrar’s assigned Investigator of your compliance with this Directive prior to 5:00 p.m. on December 20, 2021.

RESTRICTIONS

You may not perform or hire other contractors to perform work that is outside the scope of your license.

If your license is currently suspended for administrative reasons1, or is inactive, expired, or cancelled, you may not perform any corrective work nor contract in any manner, which includes hiring other contractors to perform work, until the suspension of your license(s) has been lifted or your license(s) has been reactivated.

DIRECTIVE REQUIREMENTS

You are directed to remedy the following violations by the appropriate means:

Compliance Item: 1 - Contractor states he did not sign an agreement created by me and hence has not contract with me. Yet, he agreed to take on the project on 8/13, worked on scope of work per agreement and invoiced me per that agreement scope. I've paid him $210,547 to date. Yet all of that work remains uncompleted. Now he says he cannot complete within budget and timeframe and that I have NO contract with him because he did not sign my agreement. There appear to be quality workmanship issues. Example, roofer is laying metal roof right over existing very old shingles, he is wrapping metal around decaying fascia boards. Scope of work showed remove all rotted fascia and trusses. I told him I was OK to wrap metal for bottom soffit but I did not say to leave the rotter wood. I understood him to say he would cut out the wood rot on fascia and trusses. Other quality issues concerns. I was onsite nearly daily and contractor was rarely there. His crew which contained no license electricians were struggling with the electrical as the one electrician

hired rarely showed up. I voiced my concern to the contractor who said that he was a licensed and bonded electrician and he would be there on the weekends to help out his crew. I still have concerns about electrical as very little oversight by general contractor. Continued 1. Contractor tore up asphalt parking lot and demoed front of building gazebo cover per agreement. Agreement showed new paver parking lot and new metal cover for front of building to rise above front entrance of roofline. I paid to demo parking lot and front of building. I paid $15,000 for pavers. Now he says I am "out of money" and sand is ankle deep in parking lot and building has no entrance! Had I been told I would "run out of money" I would not have let him demo

Investigator’s Observation: At the time of the inspection the jobsite was in an unfinished state. The City of Phoenix had placed a stop work order dated 11/28/2021 on the premises due to no permits being pulled. It has been confirmed thru the City of Phoenix that many permits are required based on the scope of work. Specific workmanship items will not be addressed in this directive due to the status of the project as being incomplete and unable to move forward due to the stop work order that is in place. Therefore, based on the stop order and the incomplete status of the project the respondent is directed to acquire all necessary permits and complete the project per original contract agreement, properly executed change orders, verbal agreements, local building codes and manufacturers installation instructions.

Governing Rule: Violation of any rule adopted by the Registrar; Namely A.A.C. R4-9-108(a): A contractor shall perform all work in a professional and workmanlike manner.

13. Supercool failed to comply with the Directive.

14. Supercool filed a timely appeal to the Citation.

15. The matter was referred to the OAH for an evidentiary hearing.

16. A hearing was held on March 31, 2022.

17. At hearing, Investigator Avila testified regarding his investigation of the complaint, the job site inspections, and the issuance of the Directive. Ms. Koch testified on behalf of herself and presented the testimony of Mike Smitz and Eddie Valenzuela. Supercool presented the testimony of Ms. Avelar and Jimmy Bourbon.

18. Ms. Koch explained that Supercool performed poor work and failed to

complete the project. Ms. Koch stated that Supercool informed her that permits were

not needed for the project.

19. Mr. Bourbon is an employee of Supercool. According to Mr. Bourbon, Ms. Koch expressed that she did not want Supercool to pull permits for the project because she wanted it completed in approximately three months. Mr. Bourbon stated that Supercool did not abandon the project. Mr. Bourbon contended that the workmanship is not substandard but incomplete.

20. Mike Smitz is a real estate agent. Mr. Smitz was present when Supercool and Ms. Koch discussed the scope of work for the project.

21. Mr. Valenzuela is a construction contractor. Mr. Valenzuela observed the project and concluded that Supercool performed poor construction work.

Mr. Valenzuela explained that Supercool performed work that is worth approximately $80,000. However, Mr. Valenzuela opined that the cost to correct Supercool’s work would exceed the budget for the project.

22. Ms. Avelar learned from Mr. Bourbon informed her that Ms. Koch did not want permits pulled for the project. Supercool agreed to complete the project because Ms. Koch was friend of Ms. Bourbon. Ms. Avelar stated that Ms. Koch wanted a full remodel in less than 3 months and Ms. Koch did not want to pull permits. Ms. Avelar stated that Ms. Koch did not want to pay the price that would be required for architects to make the blueprints needed to obtain permits. Ms. Avelar admitted that Supercool made a mistake when it failed to obtain the required permits for the project. However, Ms. Avelar contended that Supercool did not perform poor work because Supercool did not complete the project.

23. Administrative notice is taken of the Registrar’s public website. According to the information available on the website on April 20, 2022, license number 324754

was first issued on June 8, 2019, and is active. Such prior License record also shows that one complaint was closed against license number 324754 that was resolved or settled by Supercool or withdrawn by the complainant after issuance of a corrective work order or formal citation. Such prior License record further shows that license number 324412 was first issued to Supercool on April 30, 2019. Such prior License record also shows that there is one complaint open against license number 424412. Such prior License record also shows that one complaint was closed against license number 324412 that was resolved or settled by Supercool or withdrawn by the complainant after issuance of a corrective work order or formal citation.

CONCLUSIONS OF LAW

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

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 § 5 (1960)

The preponderance of the evidence shows that Respondent did not obtain

the required permits for the project before beginning construction. Furthermore, Respondent did not complete the project. Therefore, the Administrative Law Judge concludes that Respondent violated Ariz. Rev. Stat. section 32-1154(A)(2)(b) and A.R.S. section 32-1154(A)(1). Furthermore, the preponderance of the evidence shows that Respondent did not perform the work in a professional and workmanlike manner in violation of A.A.C. R4-9-108, and thereby of A.R.S. section 32-1154(A)(3).

4. The preponderance of the evidence shows that Respondent failed to comply with the Registrar’s Directive without valid justification, which is a violation of 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 numbers 324412 and 324754 issued to Supercool Services, 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, April 20, 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

By: Miranda Alvarez

Legal Secretary