ALJDEC - Licensing
2023A-04486-CHC-ROC · Registrar of Contractors · 2023-09-06
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
Katrina M. Rivera,
COMPLAINANT
v.
Navarro's Outdoor Environments, LLC
License Nos. ROC 327455, 328497,
RESPONDENT
No. 2023A-04486-CHC-ROC
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: August 17, 2023.
APPEARANCES: Katrina M. Rivera and Fernando Rojo represented themselves as Complainant. Oscar Gregorio Navarro represented Navarro's Outdoor Environments, LLC.
ADMINISTRATIVE LAW JUDGE: Kay A. Abramsohn
___________________________________________________________________
FINDINGS OF FACT
Respondent is the holder of License No. 327455, CR-21 Hardscaping and Irrigations Systems, issued by the Arizona Registrar of Contractors (Registrar, or ROC) in January 2020, and License No. 328497, B-5 General Swimming Pool Contractor, issued by the Registrar in April 2020.
On or about April 2023, the Registrar received Complainant’s Licensed Complaint Form (Complaint) indicating that Respondent had abandoned the project, and left unfinished multiple items with the result that the site was unsafe and the HOA was pressuring Complainants regarding the completion date of the project.
In August of 2021, Complainant contracted with Respondent for a new pool build and backyard project at their new home site. The six page written contract is well-detailed with specifications as to the entire project; the contract price is $62,330.00 and contains a payment schedule per steps of completion.
After receiving the Complaint, Registrar’s Investigator Jack Grimm conducted a jobsite inspection on May 17, 2023 and, thereafter, issued a Written Directive (Directive) verifying that three specific complaint issues had been verified as needing corrective work.
The Directive noted the following three items to be corrected:
Complaint Item #1: Incomplete, electrical isn’t finished, turf not installed, decorative rock not installed, plumbing isn’t finished, pebble tech not sprayed, pool light not installed, plants and trees not planted.
Investigators Observation: The contract includes the installation of a new pool and hardscaping and landscaping of the backyard. The respondent is licensed correctly for both pool work and hardscaping/landscaping. Pool shell/shotcrete, waterline tile, rough plumbing and deck is complete. The items listed in the complaint are not completed. *Complete pool per contract.
Governing Rule: 32-1154(A)(3) Poor or incomplete work – A contractor shall perform all work in a professional and workmanlike manner.
Complaint Item #3: HOA asking when pool is going to be complete due to dirt piles in front yard taken from the backyard.
Investigators Observation: Access point on the east side front yard has not been returned to its original landscaped state.
*Return front yard landscaping back the pre-construction condition. This should be completed as soon as possible to satisfy the HOA.
Governing Rule: 32-1154(A)(3) Poor or incomplete work – A contractor shall perform all work in a professional and workmanlike manner.
Complaint Item #4: We asked for updates, then we were told he does not have the funds to complete the pool. We are told work is going to be completed but then he doesn’t come and or communicate an update. We go months from hearing from him.
Investigators Observation: Respondent states he does not have the money to complete the project at this time and has not been on site performing work to move the project forward in months. Contract date was 8-27-21. It has been 21 months since contracted. This project appears to have been abandoned. Respondent states he will finish when he is able to save up enough money.
Governing Rule: 32-1154(A)(1) Abandonment – Abandoning a contract or refusing to perform after submitting a bid on work without legal excuse.
The Registrar set forth June 5, 2023 as the deadline for Respondent’s compliance with the Directive.
No corrective work having been done by June 13, 2023, Investigator Grimm forwarded the Complaint for legal citation against Respondent.
The Registrar issued a Citation on June 19, 2023, charging Respondent’s two licenses with possible violations of: Ariz. Rev. Stat. § 32-1154(A)(1); ARIZ. Rev. Stat. § 32-1154(A)(3), namely Ariz. Admin. Code R4-9-108; and, Ariz. Rev. Stat. § 32-1154(A)(22).
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)(12) includes among the grounds for disciplinary action a failure in any material respect to comply with this chapter.
Ariz. Rev. Stat. § 32-1154(A)(22) includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, “[f]ailure to take appropriate corrective action to comply with this chapter or with rules adopted pursuant to this chapter without valid justification within a reasonable period of time after receiving a written directive from the registrar.”
On July 3, 2023, Respondent filed an Answer to the Citation, indicating that Respondent was trying his best to complete his projects for his customers who had been waiting and that he was trying to get an SBA loan or would try to sell his home.
The Registrar noticed the matter for hearing as to Respondent’s ROC License 327455.
At hearing, Complainant testified that they had made payments, basically per the contract schedule, in amounts of $18,000.00; $10,000.00; $15,800.00; $10,000.00.
At hearing, Respondent apologized for his lack of work on Complainant’s project and discussed the increasing costs and delays on the various projects he had been engaged with. He indicated he had not been able to get the electrician out to the project and when they asked for a refund of a $10,000.00 payment he gave it back. Respondent intended to complete the project and had refinanced his home.
Since the hearing session in August 2023, neither party has notified the Tribunal that the matter was resolved informally between the parties prior to the date of this decision.
Administrative notice is taken of Respondent’s record with the Registrar, which reflects that Respondent’s License No. 327455 was revoked and there were two outstanding complaints and there had been 3 cases resulting in discipline.
CONCLUSIONS OF LAW
This matter lies within the Registrar’s jurisdiction. See Ariz. Rev. Stat. § 32-1101 et seq.
Unless otherwise provided by law, a party asserting a claim, right, or entitlement bears the burden of proof; a party asserting an affirmative defense has the burden of establishing the affirmative defense. The standard of proof on all issues in this matter is that of a preponderance of the evidence. Ariz. Admin. Code R2-19-119.
In this case, Complainant bears the burden of proof to establish Respondent’s statutory violations by a preponderance of the evidence. See Ariz. Rev. Stat. § 41-1092.07(G)(2); Ariz. Admin. Code R2-19-119(A) and Ariz. Admin. Code Section 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).
A preponderance of the evidence is:
The 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.
Black’s Law Dictionary 1373 (10th ed. 2014).
5. Statutes should be interpreted to provide a fair and sensible result. Gutierrez v. Industrial Commission of Arizona, 226 Ariz. 395, 249 P.3d 1095 (2011)(citation omitted); State v. McFall, 103 Ariz. 234, 238, 439 P.2d 805, 809 (1968) ("Courts will not place an absurd and unreasonable construction on statutes.").
6. “Statutes shall be liberally construed to effect their objects and to promote justice.” Ariz. Rev. Stat. § 1-211(B).
7. The purpose of the Registrar’s licensing statutes is to protect the public from unscrupulous, unqualified, and financially irresponsible contractors. See Aesthetic Property Maintenance v. Capital Indem. Corp., 183 Ariz. 74, 900 P. 2d 1210 (1995).
8. Construction is not a perfect art and, normally, contractors must be allowed an opportunity to correct poor workmanship before their licenses may be suspended or revoked as a result of a failure to comply with workmanship standards.
9. Regarding workmanship, Investigator Grimm found workmanship contracting violation issues still existed at the time of the May 17, 2023 job site inspection. Following the issuance of the Directive mandating correction of those items, Investigator Grimm noted that these same workmanship contracting violations remained uncorrected.
10. Therefore, the Administrative Law Judge concludes that the Investigator-determined workmanship issues existed and, thus, Respondent was in violation of: Ariz. Rev. Stat. § 32-1154(A)(1) for abandonment; Ariz. Rev. Stat. § 32-1154(A)(3), specifically Ariz. Admin. Code R4-9-108 for failure to perform all work in a professional and workmanlike manner; and, in violation of Ariz. Rev. Stat. § 32-1154(A)(22) for failure to take appropriate corrective action to comply with the Directive by the Directive deadline.
RECOMMENDED ORDER
Based on the foregoing, the Administrative Law Judge recommends that the Registrar revoke Respondent’s ROC License 327455.
Pursuant to A.R.S. § 41-1092.08(I), the licensee may accept the Administrative Law Judge Decision by advising the Office of Administrative Hearings in writing not more than ten (10) days after receiving the decision. If the licensee accepts the Administrative Law Judge Decision, the decision shall be certified as the final decision by the Office of Administrative Hearings.
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 forty (40) days from the date of that certification.
Done this day, September 6, 2023.
/s/ Kay A. Abramsohn
Administrative Law Judge
Transmitted by either mail, e-mail, or facsimile to:
Cindy Casaus
Registrar of Contractors
c/o Legal Department
[email redacted]
Jack Grimm
ROC Investigator
[email redacted]
Katrina M. Rivera
[email redacted]
Navarro's Outdoor Environments, LLC
[email redacted]
By: OAH Staff