ALJDEC decisions subject to certification as final

2021A-06028-CHC-ROC · Registrar of Contractors · 2022-03-22

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Sergio Alfredo Lopez ,

COMPLAINANT,

v.

Gomez Pools & Service LLC

ROC License No. 316303,

RESPONDENT.

No. 2021A-06028-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: March 03, 2022 at 1:00 PM.

APPEARANCES: Sergio Lopez (“Complainant”) appeared on his own behalf. Jerry Gomez appeared on behalf of Gomez Pools & Service LLC (“Respondent”). Ruben Perez Sr. appeared on behalf of the Arizona Registrar Contractors (“Registrar”).

ADMINISTRATIVE LAW JUDGE: Jenna Clark.

_____________________________________________________________________

After review of the hearing record in this matter, the undersigned Administrative Law Judge makes the following Findings of Fact and Conclusions of Law, and issues this Recommended Order to the Director of the Registrar.

FINDINGS OF FACT

Background and Procedure

Pursuant to Ariz. Admin. Code R4-9-117, Administrative Notice is taken of Respondent’s prior License record as reflected on the Registrar’s public website. On November 09, 2017, the Registrar issued ROC License No. 316303 General Dual KA-5 Swimming Pool contracting license to Respondent. The license is currently active and renewed through November 30, 2023. Jerry Gomez is the Qualifying Party/Member on this license. Respondent’s address of record for the license is 1076 S. 4th Ave. Yuma, AZ 85364-9764. Respondent has an active $14,000.00 surety bond on the license effective January 21, 2021. There is one instance of prior discipline noted for the license, and eight (8) other resolved or otherwise settled complaints against the license. There are currently four (4) open complaints against the license, one of which is presumably Complainant’s.

On or about February 11, 2021, Complainant and Respondent entered into a $52,800.00 contract, which Complainant paid in full, for the construction of an in-ground heated pebble-tech pool and spa. Complainant obtained a building permit from the City of Show Low. Per the parties’ construction schedule, the project was supposed to commence on August 10, 2018, and conclude on or before February 28, 2019.

On or about November 05, 2021, the Registrar received a 6-item complaint from Complainant against Respondent’s ROC License No. 316303 alleging abandonment of their project. The Registrar designated it Complaint No. 2021-06028 and assigned to Ruben Perez Sr. (“Investigator Perez”) for investigation.

On an unknown date, the Registrar also received an unlicensed complaint from Complainant against Respondent’s ROC License No. 316303.

On November 24, 2021, Investigator Perez issued a Jobsite Inspection Notification Letter to the parties, advising that he would conduct an inspection of the project on December 13, 2021, at 10:30 a.m.

On December 10, 2021, Investigator Perez issued a Rescheduled Jobsite Inspection Notification Letter to the parties, advising that he would conduct an inspection of the project on December 20, 2021, at 10:30 a.m.

On December 20, 2021, Investigator Perez conducted a review of the contract executed between the parties and inspected the work that had been performed on the project to date. He also took 5 photographs of the project site. When he was finished, Investigator Perez drafted his Inspection Notes. Ultimately, Investigator Perez substantiated 1 of Complainant’s 6 complaint items. Specifically, Investigator Perez determined that complaint item 1, that the project was incomplete although Complainant had paid the contract in full, failed to meet the Registrar’s completion and minimum workmanship standards and required Respondent to perform corrective work to remediate the identified deficiencies.

A Written Directive from the Registrar (“Directive”) was not issued in this matter because Respondent’s license was inactive as of the date jobsite inspection due to disciplinary action taken by the Registrar.

On December 20, 2021, 2021, Investigator Perez forwarded the matter to the Registrar’s legal department with the issuance of a Citation Recommendation.

On December 23, 2021, the Registrar issued a Citation to Respondent for alleged violations of Ariz. Rev. Stat. §§ 32-1154(A)(1), 32-1154(A)(3); Ariz. Admin. Code R4-9-108, and 32-1154(A)(17). Respondent was given until January 07, 2022, to respond with its Answer or face discipline pursuant to Ariz. Rev. Stat. §§ 32-1154 and 32-1155.

On January 06, 2022, the Registrar received Respondent’s Answer. In pertinent parts, Respondent alleged that “[Complainant] had obtained pool permit and had the Pool completed by third party. [Respondent] has resolved all matters with [Complainant] and [Complainant] wishes to close this complaint.” (All errors in original.)

On January 21, 2022, the Registrar referred this matter to the Office of Administrative Hearings (“OAH”), an independent state agency, for an evidentiary hearing on March 03, 2022. Per the February 01, 2021, Notice of Hearing the issues to be determined are whether the Registrar has cause to discipline Respondent’s license based on the following alleged statutory violations:

Charge 1: A.R.S. § 32-1154(A)(1)

Charge 2: A.R.S. § 32-1154(A)(3) – A.A.C. R4-9-108

Charge 3: A.R.S. § 32-1154(A)(17)

Hearing Evidence

Complainant testified on his own behalf and called Investigator Perez as a witness. Jerry Gomez testified on behalf of Respondent. The Registrar’s agency file and Notice of Hearing were admitted into the record as their own exhibits. The substantive evidence of record is as follows:

Complainant owns residential property located at 13555 S. Ave. 6E, Yuma, AZ 85365, where the underlying project was performed.

Per the terms of the parties’ contract, the project was supposed to commence on March 19, 2021, and be completed within ninety (90) days.

Both parties agree, however, that work on the project began February 19, 2021.

Complainant tendered payments to Respondent for the project as follows: $13,200.00 on April 16, 2021, $13,200.00 on May 14, 2021, $5,280.00 on August 12, 2021, and $4,920.00 on February 19, 2021.

On May 06, 2021, building permit #B21-0431 was issued to Respondent by the local governing authority for Complainant’s project. On November 08, 2021, the permit was transferred to Complainant.

Sometime in August 2021 Respondent’s license was placed in active status by the Registrar as a disciplinary measure.

When Complainant filed Complaint No. 2021-06028 with the Registrar in November 2021, the pool still had not been plastered, and the heating element had not been installed.

In December 2021, Mr. Gomez began working for his brother’s licensed pool cleaning company, Gomez Pool Service.

On December 19, 2021, Mr. Gomez’s cousin Pedro Aguayo, previously employed as a trade by Tacupeto Concrete & Plumbing LLC, ROC License No. 254824, plastered Complainant’s pool as an independent. Mr. Aguayo is not a licensed contractor. Complainant did not request his services or pay for the work that Mr. Aguayo performed. On December 20, 2021, when questioned by Investigator Perez, Mr. Gomez admitted that he had provided Mr. Aguayo with plastering materials for the project.

On an unknown date, Mr. Gomez hired Westmore Electric to install Complainant’s electrical panel.

On February 25, 2022, Mr. Gomez installed Complainant’s pool heating element.

On February 28, 2022, after Respondent completed work on an electrical panel, a fire broke out in the breaker due to a power surge.

In closing, Respondent argued that discipline was not warranted because Complainant’s pool had been constructed, and Mr. Gomez’s brother’s company had been servicing it for several months prior to the fire.

In closing, Complainant expressed frustration regarding Respondent’s failure to complete his project as schedule, and opined that Mr. Gomez should be held liable for the fire that destroyed portions of his home in early 2022.

CONCLUSIONS OF LAW

The Registrar has jurisdiction over this matter pursuant to Ariz. Rev. Stat. §§ 32-1101 et seq. and 32-1154(A). The matter was properly brought before OAH pursuant to Ariz. Rev. Stat. §§ 41-1092 et seq.

The purpose of the Registrar’s licensing statutes is to protect the public from unscrupulous, unqualified, and financially irresponsible contractors.

The Registrar may resolve contractual disputes if such resolution in ancillary to its regulatory mission and may penalize a contractor’s license by ordering payment of restitution if a proven statutory violation was not remedied by corrective action.

Complainant bears the burden of proof to establish cause to discipline Respondent’s license by a preponderance of the evidence. Respondent bears the burden to establish factors in mitigation of the penalty and affirmative defenses by the same evidentiary standard.

“A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.” A preponderance of the evidence is “[t]he greater weight of the evidence, not necessarily established by the greater number of witnesses testifying to a fact but by evidence that has the most convincing force; superior evidentiary weight that, though not sufficient to free the mind wholly from all reasonable doubt, is still sufficient to incline a fair and impartial mind to one side of the issue rather than the other.”

Ariz. Rev. Stat. § 32-1154(A)(1) includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, “[Abandonment of a contract or refusal to perform after submitting a bid on work without legal excuse for the abandonment or refusal.”

Ariz. Rev. Stat. § 32-1154(A)(3) includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, “[v]iolation of any rule adopted by the registrar.”

Ariz. Admin. Code R4-9-108 requires that “[a]ll work shall be performed in a professional and workmanlike manner” and that “[a]ll work shall be performed in accordance with any applicable building codes and professional industry standards.”

Ariz. Rev. Stat. § 32-1154(A)(17) includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, “Contracting ...while the license is under suspension or while the license is on inactive status.”

Ariz. Rev. Stat. § 32-1154(E) provides, in pertinent parts, that the Registrar may “[i]mpose a civil penalty not to exceed five hundred dollars on a contractor for each violation. The failure by the licensee to pay any civil penalty imposed results in the automatic revocation of the license thirty days after the effective date of the order providing for the civil penalty.” It also provides that “[n]o future license may be issued to an entity consisting of a person who is associated with the contractor, unless payment of any outstanding civil penalty is tendered.”

The material facts in the case at bar are clear.

The relevant and credible evidence of record establishes that the parties entered into a $52,800.00 in-ground pool and spa contract agreement, whereby Complainant paid for the project in full and Respondent failed to timely complete the job within ninety (90) days per their agreement. The record also reflects that after Respondent’s license was inactive as a result of discipline, Mr. Gomez performed additional work on the project and hired trades, at least one (1) of whom was unlicensed, to perform work on the project as well.

Therefore, the only issue in dispute is whether Respondent raised a sufficient justification or excuse for failing to timely complete the project per contract. This is an affirmative defense that Respondent bears the burden to establish. Here, Respondent did not sustain his burden. There is no evidence in the record that excuses or otherwise justifies Respondent’s inaction and/or lack of performance on this project. Respondent had more than ninety (90) days between the date work on the project began and the date ROC License No. 316303 became inactive.

Therefore, because Complainant has established Respondent’s violations of Ariz. Rev. Stat. §§ 32-1154(A)(1), 32-1154(A)(3); Ariz. Admin. Code R4-9-108, and 32-1154(A)(17), Complainant has also established cause for the Registrar to discipline Respondent’s contractor’s license.

RECOMMENDED ORDER

Based on the foregoing,

IT IS RECOMMENDED that five days after the effective date of the Final Order in this matter, Respondent Gomez Pools & Service LLC, ROC License No. 316303, be suspended for three (3) weeks based on its violations of Ariz. Rev. Stat. §§ 32-1154(A)(1), 32-1154(A)(3), and 32-1154(A)(17).

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.

Done this day, March 18, 2022.

Office of Administrative Hearings

/s/ Jenna Clark

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors