ALJDEC decisions subject to certification as final

2021A-06241-CHC-ROC · Registrar of Contractors · 2022-05-02

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

James Ake,

COMPLAINANT

T L C Pool & Spas LLC

License No. ROC 327685,

RESPONDENT

No. 2021A-06241-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: April 22, 2022

APPEARANCES: James Ake Complainant appeared on his own behalf. Respondent T L C Pool & Spas LLC did not appear.

ADMINISTRATIVE LAW JUDGE: Tammy L. Eigenheer

_____________________________________________________________________

FINDINGS OF FACT

T L C Pool & Spas LLC (Respondent) is the holder of License No. 327685 issued by the Arizona Registrar of Contractors (Registrar).

On or about September 17, 2021, James Ake (Complainant) signed a contract with Respondent for, among other things, the remodel of a swimming pool and decking.

On or about November 29, 2021, the Registrar received a Complaint against Respondent from Complainant alleging abandonment and poor work with respect to the project.

The Registrar assigned the complaint to Investigator Steven Avila. After a jobsite inspection, Investigator Avila issued a written directive to Respondent that provided 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 January 26, 2022.

. . . .

DIRECTIVE REQUIREMENTS

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

Compliance Item: 2 - Paid for pool equipment in the amount of $3979 has never been received - Only filter received

Investigator’s Observation: At the time of the inspection only the pool filter had been delivered. No other agreed upon pool equipment was present. Allegation is verified. Respondent shall correct by the appropriate means.

. . . .

Compliance Item: 3 - Plumbing work began and never finished

Investigator’s Observation: At the time of the inspection pool plumbing remained in an unfinished state. Allegation is verified. Respondent shall correct by the appropriate means.

. . . .

Compliance Item: 4 - Electrical paid for and never started or completed

Investigator’s Observation: At the time of the inspection, the electrical connections remained in an unfinished state and exposed wiring was present. Allegation is verified. Respondent shall correct by the appropriate means

. . . .

Compliance Item: 5 – Drainage installed insufficiently for the deck installed 2 inches greater than prior. This has caused the decking to slope towards the home

Investigator’s Observation: At the time of the inspection, the drain remained incomplete nonfunctioning. Decking did appear to be raised by the chosen materials and therefore sloped towards the residence. Allegation is verified. Respondent shall correct by the appropriate means.

. . . .

Compliance Item: 6 – Paid for decking and coping - Insufficient deck coping received, not enough delivered to finish the job; Incomplete decking

Investigator’s Observation: At the time of the inspection, both the decking and coping remained unfinished. Allegation is verified. Respondent shall correct by the appropriate means

. . . .

Compliance Item: 7 - Large pile of dirt in the public cul-de-sac street due for excessive period due to incomplete decking

Investigator’s Observation: At the time of the inspection a large pile of excess materials remained in the street in front of the complainant’s residence. Allegation is verified. Respondent shall correct by the appropriate means

. . . .

Compliance Item: 8 – Interior pool pebble stone never complete - left in chipped stage;

Investigator’s Observation: Interior of pool is in a chipped out and unfinished state. Allegation is verified. Respondent shall correct by the appropriate means.

Following the issuance of the written directive, Respondent did not attempt to perform any corrective work. After the deadline in the directive expired, Investigator Avila was notified no corrective work had been performed.

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(a); and A.R.S. § 32-1154(A)(22).

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 1:00 p.m. on April 12, 2021. The Registrar mailed copies of the Notice of Hearing to Respondent at its address and email address of record. A March 16, 2022 order from the Office of Administrative Hearings advised the parties of how to connect to the hearing via Google Meet. The hearing was held via Google Meet on April 12, 2021.

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 Avila testified as to his involvement in the matter. Investigator Avila indicated that Respondent was not present at the jobsite inspection, but was present at the compliance jobsite inspection, at which he noted no work had been done.

Complainant testified that he overpaid on the contract and that Respondent stopped returning his calls and texts. Complainant stated that Respondent informed him that money he had paid for pool equipment was used to purchase equipment for a different project so Respondent could get paid on that job. Complainant also questioned Respondent’s answer to the Citation in which Respondent blamed the problems on supply chain issues and a lack of communication regarding the same.

Administrative notice is taken of Respondent’s prior License record on May 2, 2022. Such prior License record reflects that Respondent’s License No. 327685 was first issued on February 13, 2020, and was revoked on February 7, 2022. Such prior License record also reflects that there were no other open complaints and one prior complaint resulting in revocation 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(C).

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 did not attempt to complete the corrective work following the written directive being issued. Therefore, Complainant established that Respondent failed to take appropriate corrective action following a written directive from the Registrar in violation of A.R.S. § 32-1154(A)(22).

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. 327685.

It is further recommended that the Registrar require Respondent to pay the sum of $500.00 as a civil penalty pursuant to A.R.S. § 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 A.R.S. § 32-1101(A)(5), unless Respondent tenders payment of any outstanding prior civil penalty.

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, May 2, 2022.

/s/ Tammy L. Eigenheer

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors

By Miranda Alvarez

Legal Secretary -54864001

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-137160-45720000