ALJDEC decisions subject to certification as final
2022A-06555-CHC-ROC · Registrar of Contractors · 2022-11-17
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
Jennifer McNamara,
COMPLAINANT,
v.
T L C Pool & Spas LLC
ROC License No. 327685,
RESPONDENT.
No. 2022A-06555-CHC-ROC
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: November 16, 2022 at 1:00 PM.
APPEARANCES: Jennifer McNamera (“Complainant”) appeared on her own behalf. Daniel Edwards appeared on behalf of the Arizona Registrar of Contractors (“Registrar”). No appearance(s) by or on behalf of T L C Pool & Spas LLC (“Respondent”).
ADMINISTRATIVE LAW JUDGE: Jenna Clark.
_____________________________________________________________________
Having heard the evidence and testimony and having considered the record in this matter, the undersigned Administrative Law Judge hereby makes the following Findings of Fact and Conclusions of Law and issues the following Recommended Order to the Director of the Arizona Registrar of Contractors (“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 February 13, 2020, the Registrar issued License No. 327685 General Residential B-5 Swimming Pool contracting license to Respondent. Although the license had been renewed through February 28, 2022, the Registrar revoked it on February 07, 2022. Melane Lisseth Garcia is listed as the Qualifying Party/Manager/Member on the license. Respondent’s address of record for the license is 3855 E. Sierra Madre Ave. Gilbert, AZ 85296. Respondent has an active $9,000.00 surety bond on the license issued by Old Republic Surety Company, effective January 01, 2020. The license has been disciplined by the Registrar on 2 prior occasions, an currently has 1 open complaint against it which is presumably related to this matter.
On or about April 06, 2022, the Registrar received a 15-item complaint from Complainant against Respondent’s License No. 327685 alleging abandonment and poor workmanship regarding an in-ground pool project, including the construction of a pergola and outdoor bar-b-que grill. The Registrar designated it Complaint No. 2022-06555 and assigned to Daniel Edwards (“Investigator Edwards”) for investigation.
On August 18, 2022, the Registrar issued a Jobsite Inspection Notification letter to the parties, advising that an onsite review would be conducted at the project site by Investigator Edwards on August 22, 2022, at 9:00 a.m.
On August 22, 2022, Investigator Edwards reviewed the contract that had been executed between the parties and inspected the work that had been done on the project to date. He also took 50 photographs of the project. When he was finished, Investigator Edwards drafted Jobsite Inspection Notes. Ultimately, Investigator Edwards substantiated 11 of 15 complaint items. Specifically, Investigator Edwards determined that complaint items 3-4, 6-9, and 11-15 constituted poor, incomplete, and/or out of scope work, and failed to meet the Registrar’s minimum workmanship standards.
Because Respondent’s contracting license had already been revoked by the time of the jobsite inspection, Investigator Edwards did not issue a Written Directive from the Registrar (“Directive”) to Respondent, as Respondent could not lawfully perform corrective work or subcontract repairs.
On August 24, 2022, Investigator Edwards issued a Warning Letter to Respondent to advise that building permit(s) were not obtained for the project in violation of the International Residential Code and the International Building Code. Respondent was further advised that failure to comply with the building codes was a violation of Ariz. Rev. Stat. § 32-1154(A)(2)(b), which could result in discipline against Respondent’s license including suspension or revocation.
On August 24, 2022, Investigator Edwards issued a Warning Letter to Respondent because he believed the work on the underlying project required possession of a B-4 General Residential Engineering contracting license that Respondent did not possess during the relevant time period, in violation of Ariz. Rev. Stat. § 32-1154(A)(16), which could result in discipline against Respondent’s license including suspension or revocation.
On August 24, 2022, Investigator Edwards escalated Complaint No. 2022-06555 to the Department’s legal department with citation recommendations for violations of Ariz. Rev. Stat. §§ 32-1154(A)(1), 32-1154(A)(2)(b), 32-1154(A)(3); Ariz. Admin. Code R4-9-108(a), and 32-1154(A)(16).
On September 02, 2022, the Registrar issued a Citation to Respondent for alleged violations of Ariz. Rev. Stat. §§ 32-1154(A)(1), 32-1154(A)(2)(a), 32-1154(A)(3); Ariz. Admin. Code R4-9-108(a), and 32-1154(A)(16). Respondent was given until September 19, 2022, to respond with its Answer or face discipline pursuant to Ariz. Rev. Stat. § 32-1155.
On September 19, 2022, the Registrar received Respondent’s timely written Answer. Respondent argued that Complainant’s customizations, particularly the materials Complainant chose for the pool, caused delays and increased the overall price of the project. Respondent noted that it was still willing to complete the project per contract.
On September 21, 2022, the Registrar referred this matter to the Office of Administrative Hearings (“OAH”), an independent state agency, for an evidentiary hearing on November 16, 2022. Per the October 12, 2022, Notice of Hearing the issue to be determined is whether the Registrar has cause to discipline Respondent’s license based on the following charges:
Charge 1: A.R.S. § 32-1154(A)(1)
Charge 2: A.R.S. § 32-1154(A)(2)(a)
Charge 3: A.R.S. § 32-1154(A)(3) – A.A.C. R4-9-108(a)
Charge 4: A.R.S. § 32-1154(A)(16)
Hearing Evidence
Complainant testified on her own behalf and called Investigator Edwards as a witness. The Registrar’s agency file (“Agency File”), including the Notice of Hearing, was admitted into the record as its own exhibit. The substantive evidence of record is as follows:
Complainant owns residential property located at 27995 N. 100th Ln. Peoria, Arizona 85383.
On or about March 21, 2020, the parties entered into an $81,932.29 contract whereby Respondent agreed to build Complainant an in-ground pool, pergola, and outdoor kitchen with a built-in bar-b-que. Respondent pulled permits for the swimming pool and gas lines for its heater, but not for any other part of the project. Work was set to commence on June 18, 2020, and be completed within 3 months’ time.
Although Complainant paid for the contract in full, she paid an additional $15,000.00 to Respondent in December 2021 upon Respondent’s request so that the project could be completed.
Respondent ceased work on the project on or about November 18, 2021, though the job was incomplete.
Complainant declined to provide a closing argument.
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.
The Notice of Hearing the Registrar mailed to Respondent’s address of record is sufficient, and Respondent is deemed to have received notice of the hearing in this matter. Because the Registrar mailed all correspondence to Respondent in the same manner and failed to receive any mail returned as undeliverable, Respondent is deemed to have received all correspondence regarding this matter from the Registrar as well.
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)(2)(a) includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, “Departure from or disregard of plans or specifications in any material respect that is prejudicial to another without consent of the owner or the owner's duly authorized representative and without the consent of the person entitled to have the particular construction project or operation completed in accordance with such plans and specifications and code.”
Ariz. Rev. Stat. § 32-1154(A)(2)(b) includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, “A building code of this state or any political subdivision of this state in any material respect that is prejudicial to another.”
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 contractor shall perform all work in a professional and workmanlike manner, and that a contractor shall perform all work in accordance with any applicable building codes and professional industry standards.”
Ariz. Rev. Stat. § 32-1154(A)(16) includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, “Knowingly contracting beyond the scope of the license or licenses of the licensee.”
Here, the record is clear.
It is clear from the record that the parties had a written contract that was not only out of scope with Respondent’s license, but that Complainant overpaid by $15,000.00. It is also clear that Respondent failed to complete the parties’ contract, and that the work Respondent performed on the project fell below the Registrar’s minimum workmanship standards. It is undisputed that Respondent was not afforded an opportunity to perform corrective work as its license had already been revoked by the Registrar at the time of the underlying jobsite inspection.
Therefore, the only issue in dispute is whether Respondent raised a sufficient justification or excuse for failing to adhere to complete Complainant’s project in a workmanlike manner per contract. This is an affirmative defense that Respondent bears the burden to establish. Here, Respondent has failed to sustain its burden. The Tribunal is not at liberty to make presumptions in favor of Respondent or accept facts in mitigation on behalf of Respondent that are not supported by the evidence. Respondent’s absence from this administrative proceeding is, however, a factor in aggravation. The evidentiary record in this matter reflects that Respondent failed to complete the underlying project at issue and never returned Complainant’s payment; in whole or in part, and had no affirmative defense(s) for doing so.
Because Complainant established violations of Ariz. Rev. Stat. §§ 32-1154(A)(1), 32-1154(A)(2)(b), 32-1154(A)(3); Ariz. Admin. Code R4-9-108(a), and 32-1154(A)(16) by a preponderance of the evidence, Complainant has also established grounds for the Registrar to take disciplinary action against Respondent’s license.
Complainant may petition the Registrar’s Recovery Fund for financial recompense regarding this matter, as the Tribunal has no jurisdiction to award a refund of the underlying amount contracted between the parties.
RECOMMENDED ORDER
Based on the foregoing,
IT IS RECOMMENDED that on the effective date of the Final Order in this matter Respondent T L C Pool & Spas LLC, ROC License No. 327685, be revoked.
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, November 17, 2022.
Office of Administrative Hearings
/s/ Jenna Clark
Administrative Law Judge
Transmitted electronically to:
Jeffrey Fleetham, Director
c/o Legal Department
Registrar of Contractors
Arizona Registrar of Contractors, Complainant
1700 W. Washington St., Ste. 105
Phoenix, AZ 85007
[email redacted]
T L C Pool & Spas LLC, Respondent
3855 E. Sierra Madre Ave.
Gilbert, AZ 85296
[email redacted]
Jennifer McNamara, Complainant
27995 N 100th Ln.
Peoria, AZ 85383
[email redacted]
By Miranda Alvarez
Legal Secretary