ALJDEC - Licensing
2023A-05510-CHC-ROC · Registrar of Contractors · 2024-01-08
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
Shelia Marie Cole,
COMPLAINANT
v.
Desert Iris Pools LLC
License No. ROC 328448,
RESPONDENT
No. 2023A-05510-CHC-ROC
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: December 20, 2023
APPEARANCES: Shelia Marie Cole appeared on her own behalf. Respondent failed to appear.
ADMINISTRATIVE LAW JUDGE: Brian Del Vecchio
EXHIBITS ADMITTED INTO EVIDENCE: Hearing file submitted by the Registrar of Contractors “2023A-05510-CHC-ROC Notice of Hearing and Packet MAILED.pdf”
_____________________________________________________________________
FINDINGS OF FACT
Desert Iris Pools LLC (Respondent) is the holder of License No. 328448 issued by the Arizona Registrar of Contractors (Registrar).
On or about May 2, 2022, Shelia Marie Cole (Complainant) entered into a contract with Respondent for, among other things, construction of a pool.
On or about May 11, 2023, the Registrar received a Complaint against Respondent from Complainant alleging poor work with respect to the project.
The Registrar assigned the complaint to Investigator Jack Grimm. After a jobsite inspection, Investigator Grimm 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 July 7, 2023.
RESTRICTIONS
You may not perform or hire other contractors to perform work that is outside the scope of your license.
If your license is currently suspended for administrative reasons, or is inactive, expired, or cancelled, you may not perform any corrective work nor contract in any manner, which includes hiring other contractors to perform work, until the suspension of your license(s) has been lifted or your license(s) has been reactivated.
DIRECTIVE REQUIREMENTS
You are directed to remedy the following violations by the appropriate means:
Complainant Item #1: This is my second complaint for job abandonment.
Investigators Observation: Previous complaint was 2023-01335 and a jobsite inspection was performed on 2-22-23. Pool had just been shotcreted. It has now been almost 4 months and the only items completed in that time have been the coping and waterline tile. Pool equipment is set. The electrical connections are not complete. Contract date on this project was 5-2-22 well over a year ago.
*Complete pool project as outlined in the contract/agreement.
Governing Rule: 32-1154(A)(3) Poor or incomplete work – A contractor shall perform all work in a professional and workmanlike manner.
Following the issuance of the written directive, the deadline was scheduled for July 7, 2023. After the deadline in the directive expired, Investigator Grimm was notified no corrective work had been performed.
The Registrar issued a Citation against Respondent, charging possible violations of Ariz. Rev. Stat. § 32-1154(A)(3), namely Ariz. Admin. Code R4-9-108(A); and Ariz. Rev. Stat. § 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 9:00 a.m. on December 20, 2023. The Registrar mailed copies of the Notice of Hearing to Respondent at its address and email address of record. A November 27, 2023 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 December 20, 2023.
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 Grimm testified consistently with his jobsite inspection notes and written directive.
Complainant testified the pool had never worked properly. When the pool equipment was tested, it leaked in multiple places. After the leak, the manufacturer of the pool equipment tested the pump. The manufacturer determined the reason the equipment leaked was because it was installed incorrectly. Complainant paid Respondent in full for the pool, but more than sixteen months after the contract, she did not have a working pool.
Administrative notice is taken of Respondent’s prior License record on January 4, 2024. Respondent’s license No. 328448 was first issued on April 13, 2020, and is active. Respondent’s license record also reflects that there were no other open complaints and two resolved/settled complaints against Respondent’s license.
CONCLUSIONS OF LAW
This matter lies within the Registrar’s jurisdiction.
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.
Complainant bears the burden of proof to establish Respondent’s statutory violations by a preponderance of the evidence.
“A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.”
The evidence established that Respondent’s work was not in conformity with the Registrar’s standards. The pool was never completed to be a fully functioning pool. The pump manufacturer tested the pool equipment and determined the leaks were caused by poor installation. Therefore, Complainant established that Respondent did not complete the project in a workmanlike manner in violation of Ariz. Rev. Stat. § 32-1154(A)(3), namely Ariz. Admin. Code R4-9-108(A).
The evidence established that Respondent did not attempt to complete the corrective work following the Directive being issued. No work was completed before the deadline in the written directive. Therefore, Complainant established that Respondent failed to take appropriate corrective action following a written directive from the Registrar in violation of Ariz. Rev. Stat. § 32-1154(A)(22).
RECOMMENDED ORDER
Based on the foregoing, it is recommended that on the effective date of the Order, the Registrar shall suspend Respondent’s License No. 328448 for a period of seven (7) days.
It is further recommended that the Registrar require Respondent to pay the sum of $500.00 as a civil penalty pursuant to Ariz. Rev. Stat. § 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 Ariz. Rev. Stat. § 32-1101(A)(5), unless Respondent tenders payment of any outstanding prior civil penalty.
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, January 5, 2024.
/s/ Brian Del Vecchio
Administrative Law Judge
Transmitted on January 8, 2024, by either mail, e-mail, or facsimile to:
Tom Cole, Director
Registrar of Contractors
Shelia Marie Cole
[email redacted]
Desert Iris Pools LLC
[email redacted]
Jack Grimm
[email redacted]
By: OAH Staff