ALJDEC decisions subject to certification as final

2022A-04795-CHC-ROC · Registrar of Contractors · 2023-02-03

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Donald Thomas Sayles,

COMPLAINANT

Aqua Pools Del Valle, LLC

License No. ROC 330044,

RESPONDENT

No. 2022A-04795-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: January 17, 2023

APPEARANCES: Complainant Donald Thomas Sayles appeared on his own. Iran Covarrubias, Owner, appeared on behalf of Respondent Aqua Pools Del Valle, LLC.

ADMINISTRATIVE LAW JUDGE: Tammy L. Eigenheer

_____________________________________________________________________

FINDINGS OF FACT

Aqua Pools Del Valle, LLC (Respondent) is the holder of License No. 330044 issued by the Arizona Registrar of Contractors (Registrar).

On or about March 16, 2022, Donald Sayles (Complainant) entered into a contract with Respondent for the construction of a water feature including a “Sheer Descent Wall” for a total cost of $8,500.00. The contract clearly identified that Respondent was a contracting party and included the Respondent’s ROC license number.

On or about June 13, 2022, the Registrar received a Complaint against Respondent from Complainant alleging poor work with respect to the project.

The Registrar assigned the complaint to Investigator Steven Avila. After a jobsite inspection, Investigator Avila determined there were workmanship issues, but because Respondent’s license was suspended, he did not issue a written directive. The matter was referred to legal.

The Registrar issued a Citation against Respondent, charging possible violations of A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108(A); and A.R.S. § 32-1154(A)(17).

Investigator Avila testified that during the jobsite inspection, he observed plumbing issues related to the construction of the water feature.

Complainant testified that he had a series of contracts with Respondent during the construction of the swimming pool. Complainant stated that the parties would enter into new contracts at each phase of the construction. Complainant stated that the issues with the descent wall were clearly attributable to the work done by Respondent.

Elizabeth Sayles testified that she and Complainant started the process of building the pool in September 2021 and had been working with Respondent at different phases of the construction. Ms. Sayles stated that the contract for the descent wall was executed on March 7, 2022.

Mr. Covarrubias testified that he was in preparing for the Registrar testing necessary to address the licensing issue. Mr. Covarrubias stated that was not working as a contractor for Complainant, but was “helping customers build their pools.” Mr. Covarrubias admitted that he was aware his license was suspended in February 2021, and he had been working since that time.

Administrative notice is taken of Respondent’s prior License record on February 3, 2023. Such prior License record reflects that Respondent’s License No. 330044 was first issued on August 3, 2020, and has been suspended for lack of a qualifying party since February 5, 2021. Such prior License record also reflects that there were no other open or prior complaints against Respondent’s license.

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 evidence established that Respondent’s work was not in conformity with the Registrar’s standards. 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 evidence established that Respondent’s license was suspended on February 5, 2021, and Respondent entered into the contract with Complainant on March 7, 2022. Therefore, Complainant established that Respondent contracted while its license was under suspension in violation of A.R.S. § 32-1154(A)(17).

Of particular concern to the Administrative Law Judge is that Respondent obtained its license on August 3, 2020, only six months later the license was suspended for the lack of a qualifying party, and Respondent has been contracting with individuals for almost two years since the suspension occurred. Mr. Covarrubias testifying that Respondent was not contracting during that time, but was merely “helping customers build their pools” demonstrated that Respondent could not be regulated at this time.

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. 330044.

It is further recommended that the Registrar require Respondent to pay the sum of $1,000.00 as a civil penalty pursuant to A.R.S. § 32-1154(F).

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, February 3, 2023.

/s/ Tammy L. Eigenheer

Administrative Law Judge

Transmitted electronically or by mail to:

Jeffrey Fleetham, Director

Registrar of Contractors

Donald Thomas Sayles

[email redacted]

Aqua Pools Del Valle, LLC

[email redacted]

Steven Avila

[email redacted]

By: OAH Staff

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-137160-45720000