ALJDEC - Licensing

2023A-14169-CHC-ROC · Registrar of Contractors · 2024-06-04

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Jennifer Bruner,

COMPLAINANT,

v.

Bill's Pool Service Inc.

dba Money’s Worth Pool Construction

ROC License Nos. 227545, 127739

RESPONDENT.

No. 2023A-14169-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: June 04, 2024 at 9:00 AM.

APPEARANCES: Jennifer Bruner (“Complainant”) appeared on her own behalf. John “Joey” Chester appeared on behalf of the Arizona Registrar of Contractors (“Registrar”). No appearance(s) by or on behalf of Bill’s Pool Service Inc. (“Respondent”). Anthony Rojahn observed.

ADMINISTRATIVE LAW JUDGE: Jenna Clark.

EXHIBITS ADMITTED INTO EVIDENCE: The Notice of Hearing, including the Registrar’s attached agency file, and April 26, 2024, Hearing Order were admitted into the evidentiary record.

_____________________________________________________________________

After review of the hearing record in this matter, the undersigned Administrative Law Judge makes the following Findings of Fact and Conclusions of Law, and issues this Recommended Order to the Director of the Registrar.

FINDINGS OF FACT

Background and Procedure

Pursuant to Arizona Administrative Code (“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 December 08, 2006, the Registrar issued License No. 227545 General Commercial A-9 Swimming Pools contracting license to Respondent. Although the license was renewed through December 12, 2025, it was revoked by the Registrar on May 13, 2024. On November 17, 1997, the Registrar issued License No. 127739 General Residential B-5 General Swimming Pool contracting license to Respondent.

William Miles Griffin Jr. is the Qualifying Party and Officer on both licenses. Carol Ann Griffin is also listed as an Officer on both licenses. Respondent has an active $10,000.00 surety bond on License No. 227545 issued by Contractors Bonding and Insurance Company, effective December 23, 2016. Respondent has an active $9,000.00 surety bond on License No. 127739 issued by Platte River insurance Company, effective October 13, 2023. Both licenses have been disciplined on two (2) prior occasions. License No. 227545 has had one (1) complaint settled or otherwise resolved against it. Currently, there is one (1) open complaint against License No. 227545, which is presumed to be related to this matter. License No. 127739 has had two (2) complaint settled or otherwise resolved against it. Currently, there are two (2) open complaint against License No. 227545, one of which is presumed to be related to this matter. Respondent’s address of record for the license is 515 E. Carefree Hwy. PMB 356 Phoenix, Arizona 85085.

On December 12, 2023, the Registrar received a narrative complaint from Complainant alleging abandonment of an in-ground pool installation project against Respondent’s License No. 227545. The Registrar designated it Complaint No. 2023-14169 and assigned to Joey Chester (“Investigator Chester”) for investigation.

On December 20, 2023, Investigator Chester issued a Jobsite Inspection Notification Letter to the parties, advising that he would conduct an inspection of the project on January 10, 2024, at 12:00 p.m. Correspondence was not returned as undeliverable to Respondent.

On January 10, 2024, Investigator Chester inspected the work that had been performed on the project to date. Respondent was present. Investigator Chester also reviewed the contract-related correspondence between the parties, and took 3 photographs of the project site. When he was finished, Investigator Chester drafted his Inspection Notes. Ultimately, Investigator Chester derived a single complaint item from Complaint No. 2023-14169, which he was able to substantiate against Respondent based on his firsthand observations. Specifically, Investigator Chester determined the following:

Respondent shall complete project per original contract agreement, properly executed change orders, verbal agreements, local building codes and manufacturers installation instructions by March 1st, 2024.

(Emphasis in original.)

On January 17, 2024, Investigator Chester issued a Written Directive from the Registrar (“Directive”) to Respondent because he substantiated Complainant’s complaint allegation(s) against Respondent. Respondent was put on notice that it had until 5:00 p.m. on March 01, 2024, to notify the Registrar of its compliance with the Directive or face discipline pursuant to Arizona Revised Statutes (“Ariz. Rev. Stat.”) §§ 32-1154(A) and 32-1154(E). Correspondence was not returned as undeliverable to Respondent.

Shortly after March 01, 2024, Investigator Chester confirmed with Complainant that, although afforded fifty-one (51) days, Respondent had only performed a limited amount of corrective work, and had not asked Complainant for an extension of the Directive’s compliance period.

On March 01, 2024, Investigator Chester issued a Compliance Jobsite Inspection Notification Letter to the parties, advising that he would conduct an inspection of the project on March 19, 2024, at 12:00 p.m.

On March 19, 2024, Investigator Chester inspected the corrective work that had been performed on the project and took 11 photographs. When he was finished, Investigator Chester drafted his Compliance Jobsite Inspection Notes. Ultimately, Investigator Chester determined Respondent had not performed corrective work necessary to remediate complaint item 1, as it had “multiple steps until completion.”

On March 19, 2024, Investigator Chester forwarded the matter to the Registrar’s legal department with the issuance of a Citation Recommendation.

On March 21, 2024, the Registrar issued a Citation to Respondent for alleged violation(s) of Ariz. Rev. Stat. §§ 32-1154(A)(1); Ariz. Admin. Code R4-9-108(c), and 32-1154(A)(22). Respondent was given until April 05, 2024, to respond with its Answer or face discipline pursuant to Ariz. Rev. Stat. §§ 32-1154(A)(22) and 32-1155. Correspondence was not returned as undeliverable to Respondent.

On April 05, 2024, the Registrar received Respondent’s timely Answer whereby Mr. Griffin Jr. alleged, overall, that project delays were due to permit issues and rain outside of Respondent’s control, and that Complainant terminated the parties’ contract before Respondent had an opportunity to finish the job.

On April 08, 2024, the Registrar referred this matter to the Office of Administrative Hearings (“OAH”), an independent state agency, for an evidentiary hearing on June 04, 2024. Per the April 18, 2024, Notice of Hearing on Contested Case (“Notice of Hearing”) the issue(s) to be determined are whether the Registrar has cause to discipline Respondent’s license based on the following alleged statutory violation(s):

Charge 1: A.R.S. § 32-1154(A)(1); A.A.C. R4-9-108(c)

Charge 2: A.R.S. § 32-1154(A)(22)

Hearing Evidence

Complainant testified on her own behalf, and called Investigator Chester as a witness. Although afforded a ten (10) minute grace period, Respondent failed to appear and/or submit a Motion to Continue. The substantive evidence of record is as follows:

Complainant owns residential property located at 1909 W. Tanya Trl. Phoenix, Arizona 85086.

On August 01, 2023, Complainant and her husband, Anthony Rojahn, entered into a $41,848.20 in-ground pool installation agreement with Respondent, including travertine decking. A 15% down payment was required, followed by three 25% progress payments and the final 10% due upon completion.

Complainant tendered $17,100.00 to Respondent towards their project.

Demolition commenced on August 07, 2023.

On August 18, 2023, Respondent submitted plans to the local building authority for approval. On September 14, 2023, plans were resubmitted with corrections.

Between January 17, 2024, and March 01, 2024, Respondent had a subcontractor install rebar. Plumbing was also installed, but a pump was not included.

At no point in time did Respondent allege a denial of access to the project site during the Directive’s compliance period, or the extension thereof.

Additional Evidence

Investigator Chester testified that only License No. 227545 was applicable to the underlying contract in Complaint No. 2023-14169.

The parties have not entered into a settlement agreement for any portions of the underlying project.

Closing Argument

Complainant declined to provide a closing argument.

CONCLUSIONS OF LAW

This matter lies within the Registrar’s jurisdiction. The matter was properly brought before OAH.

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 for the Registrar 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)(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(c) requires that, “All work performed by a contractor in a county, city, or town that has not adopted building codes or where any adopted building codes do not contain specific provisions applicable to that aspect of construction work shall be performed in accordance with professional industry standards.”

Ariz. Rev. Stat. § 32-1154(A)(22) provides, in pertinent part, that “[a] holder of a license may not fail to take appropriate corrective action to comply with this chapter or rules adopted pursuant to this chapter without valid justification within a reasonable period of time after receiving a written directive from the registrar. The written directive shall set forth the time within which the contractor is to complete the remedial action. The time permitted for compliance shall not be less than fifteen days from the date of issuance of the directive. A license shall not be revoked or suspended nor shall any other penalty be imposed for a violation of this paragraph until after a hearing has been held. The Registrar has the authority to issue license discipline under this provision, including summary suspension, revocation, or imposing a civil penalty or recovery fund award.

Ariz. Rev. Stat. § 32-1154(E) holds, in pertinent parts, that the Registrar may “[i]mpose a civil penalty not to exceed five hundred dollars on a contractor for each violation. The failure by the licensee to pay any civil penalty imposed results in the automatic revocation of the license thirty days after the effective date of the order providing for the civil penalty. It also holds that no future license may be issued to an entity consisting of a person who is associated with the contractor, unless payment of any outstanding civil penalty is tendered.”

Statutes shall be liberally construed to affect their objects and to promote justice. In interpreting a statute, “[w]e first consider the language of the statute and, if it is unclear, turn to other factors, including ‘the statute’s context, subject matter, historical background, effects, consequences, spirit, and purpose.”

Statutes should be interpreted to provide a fair and sensible result. “In applying a statute its words are to be given their ordinary meaning unless the legislature has offered its own definition of the words or it appears from the context that a special meaning was intended.”

The Tribunal is required to apply equitable principles when rendering decisions. The application of equity entails offering a remedy to avoid an unconscionable or unjust result.

The material facts in the case at bar are clear.

It is clear from the record that the parties had a pool installation project that Complainant substantially paid towards. It is also clear from the record that Respondent had not timely completed the project per contract, and that although Respondent had agreed to complete the project by March 01, 2024, per the Registrar’s Directive, Respondent failed to do so or request an extension thereof.

Therefore, the only issue in dispute is whether Respondent raised a sufficient justification or excuse for failing to adhere to the Registrar’s Directive and complete Complainant’s project per contract. This is an affirmative defense that Respondent bears the burden to establish. Here, Respondent did not 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’s performance on the underlying project failed to meet the Registrar’s minimum workmanship standards, and had no affirmative defense(s) for doing so. No evidence in the record that excuses or otherwise justifies Respondent’s inaction and/or lack of performance on this project.

Notably, revocation of License No. 227545 did not occur until well after the expiration of the Directive in this matter, so the theory of legal prohibition is inapplicable.

Regardless, the parties could have entered into a settlement agreement.

Because Complainant has established Respondent’s violation(s) of Ariz. Rev. Stat. §§ 32-1154(A)(3) and 32-1154(A)(22), Complainant has also established cause for the Registrar to discipline Respondent’s contractor’s license.

Complainant may petition the Registrar’s Recovery Fund for financial recompense in this matter.

RECOMMENDED ORDER

Based on the foregoing,

IT IS RECOMMENDED that five days after the effective date of the Final Order in this matter, Respondent Bill's Pool Service Inc., ROC License Nos. 227545, be suspended for ten (10) days.

It is further recommended that the Registrar require Respondent to pay the sum total 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 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.

It is further recommended that no discipline be imposed by the Registrar against ROC License No. 127739.

NOTICE

Pursuant to Ariz. Rev. Stat. § 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, June 07, 2024.

Office of Administrative Hearings

/s/ Jenna Clark

Administrative Law Judge

Transmitted electronically to:

Tom Cole, Director

c/o Legal Department

Registrar of Contractors

1700 W. Washington St., Ste. 105

Phoenix, AZ 85007

[email redacted]

Jennifer Bruner, Complainant

1909 W. Tanya Trl.

Phoenix, AZ 85086

[email redacted]

Bill's Pool Service Inc., Respondent

515 E. Carefree Hwy. PMB 356

Phoenix, AZ 85085

[email redacted]

By: OAH Staff