ALJDEC decisions subject to certification as final

2022A-00265-CHC-ROC · Registrar of Contractors · 2022-06-15

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Beverly Dewey,

COMPLAINANT

Endless Summer Swimming Pool

Construction Inc,

License No. ROC 221919,

RESPONDENT

No. 2022A-00265-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: June 3, 2022

APPEARANCES: Complainant Beverly Dewey appeared via Google Meet. Registrar of Contractor Investigator David Fagerburg appeared via Google Meet.

ADMINISTRATIVE LAW JUDGE: Adam D. Stone

_____________________________________________________________________

FINDINGS OF FACT

Endless Summer Swimming Pool Construction, Inc. (Respondent) was the holder of License No. 221919 issued by the Arizona Registrar of Contractors (Registrar).

On or about April 8, 2020, Beverly Dewey (Complainant) signed a contract with Respondent for remodeling of her pool and to add an above ground spa. The contract amount was for $13,000.00.

On or about January 10, 2022, the Registrar received a Complaint containing seven against Respondent from Complainant alleging poor work with respect to project.

The Registrar assigned the complaint to Investigator David Fagerburg. The jobsite inspection was performed on February 16, 2022.

Investigator Fagerburg then issued a written directive on or about February 25, 2022 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 Thursday March 17, 2022.

. . .

DIRECTIVE REQUIREMENTS

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

Compliant Item 1: wouldn't show up to perform work; said it was a 3 month job and its been well over a year and job is still not finished;

Investigator’s Observation: Prior to completing the project the respondent it to obtain any and all permits required by the City of Surprise, complete the project per contract and pass all inspections.

Governing Rule: ARS §32-1154 (A) (1) (Abandonment), ARS §32-1154 (A) (3) namely R4-9-108, Poor work not performed in accordance with professional industry standards, ARS §32-1158 (A) Minimum elements of a contract.

Compliant Item 2: fire pots that we paid for did not get installed and also the ones he did provide did not sit correctly as discussed.;

Governing Rule: ARS §32-1154 (A) (1) (Abandonment), ARS §32-1154 (A) (3) namely R4-9-108, Poor work not performed in accordance with professional industry standards.

Compliant Item 3: didn't get correct permits for gas line on the fire pots.;

Governing Rule: ARS §32-1154 (A) (1) (Abandonment), ARS §32-1154 (A) (2) (B) Departure from or disregard of a building code, ARS §32-1154 (A) (3) namely R4-9-108, Poor work not performed in accordance with professional industry standards.

Compliant Item 6: didn't finish all the rock on water fall feature;

Investigator’s Observation: At this jobsite investigation I observed and am able to verify that the rock on the waterfall feature is not complete. See P (5), P (6) and P (8) thru P (10). Prior to completing the project the respondent it to obtain any and all permits required by the City of Surprise, complete the project per contract and pass all required inspections.

Governing Rule: ARS §32-1154 (A) (1) (Abandonment), ARS §32-1154 (A) (3) namely R4-9-108, Poor work not performed in accordance with professional industry standards.

(All errors contained in the original).

Also on February 25, 2022, Warning Letters were sent by Investigator Fagerburg informing Respondent there may be violations for failing to obtain a building permit as well as the contract between the parties not meeting the minimum elements of a contract under statue.

On March 28, 2022, 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)(b); A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108(a); A.R.S. § 32-1154(A)(12) and A.R.S. § 32-1154(A)(22).

On or about March 31, 2022, Respondent e-mailed an Answer to the Registrar.

On or about April 27, 2022, a Notice of Hearing was issued setting a hearing on June 3, 2022 at the Office of Administrative Hearings, an independent state agency. The Registrar mailed copies of the Notice of Hearing to Respondent at its address and email address of record.

The copy of the Notice of Hearing that the Registrar mailed to Respondent at its address of record was reasonable and Respondent is deemed to have received notice of the hearing. A.R.S. §§ 41-1092.04 and 41-1092.05(D). Further, the Office of Administrative Hearings issued an Order containing the Google Meet information to Respondent at the address of record.

Although the start of the hearing was delayed 20 minutes, Respondent did not appear through an authorized member, employee, or attorney. Consequently, Respondent did not present any evidence to defend its license.

Investigator Fagerburg testified as to the Registrar’s involvement and the above timeline.

Investigator Fagerburg testified Respondent failed to appear at the Jobsite Inspection. Further, Investigator Fagerburg testified that the project was never finished by Respondent.

Investigator Fagerburg also testified that upon his information and belief, Respondent’s license had been suspended as on November 3, 2021, thus the only option to satisfy the Directive would be to settle with Complainant.

Investigator Fagerburg testified too, that no building permit was obtained by Respondent. Further, the contract between the parties did not meet the minimum elements of a contract under the statute as it was missing Respondent’s address, license number and the “right to file” language.

In addition, Investigator Fagerburg testified that Respondent’s accusations that Complainant would not allow Respondent to inspect the property were inaccurate as the messages he viewed were not a request to repair per the Complaint.

Investigator Fagerburg also testified that the gas line was not connected and there was no wire present in the electrical conduit.

Finally, Investigator Fagerburg testified that he conducted a pre-hearing inspection on May 25, 2022, and there was no change in the status of the property, nor had Respondent submitted a proper contract to comply with the statute.

Complainant testified on her own behalf, and stated that Jessie (Respondent’s owner) was a friend. Complainant testified that Jessie had told her that the project would take three months to complete, yet it still is not complete.

Complainant testified further that Respondent requested to be paid up front for supplies yet, when workers arrived, they had no supplies. She testified further that when workers would arrive, they would only stay and work for two hours at a time, so she was worried that they never would get done.

Administrative notice is taken of Respondent’s prior License record on June 15, 2022. Such prior License record reflects that Respondent’s License No. 221919 was first issued on July 12, 2006, and reflects that it was suspended on or about November 3, 2021. In addition, there was one open complaint, namely the present complaint.

CONCLUSIONS OF LAW

This matter lies within the Registrar’s jurisdiction. See A.R.S. § 32-1101 et seq.

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 Vazzano 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 demonstrated Respondent commenced the work, and failed to complete the same. Therefore, Respondent is in violation of A.R.S. § 32-1154(A)(1).

The preponderance of credible evidence established that a permit was required for the work and Respondent failed to obtain the same at the outset. Therefore, Respondent is in violation of A.R.S. § 32-1154(A)(2)(b).

The preponderance of the evidence also established that Respondent’s work which was completed, was not in conformity with the Registrar’s standards. Per the evidence presented, the gas line was not connected, nor were there wires in the electrical conduit. Therefore, Complainant established that Respondent did not complete the project in a workmanlike manner in violation of A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108(a).

The preponderance of the evidence established, that the contract between the parties was in violation of A.R.S. § 32-1154(A)(12) - A.R.S. § 32-1158, as it did not contain the Respondent’s address, license number, nor did it contain the “right to file” language as required by the statute.

The evidence established that Respondent failed to complete the corrective work following the Directive being issued. While Respondent may not have been legally able to complete the corrective work due to its suspended license, it still could have tried to make a cash settlement offer to Complainant to try to resolve the matter. 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. 221919.

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)(7), 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 10 days from the date of that certification.

-54864001

001

-137160-45720000Done this day, June 15, 2022.

/s/ Adam D. Stone

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors

-54864001

001

-137160-45720000By Miranda Alvarez

Legal Secretary