ALJDEC - Licensing
2024A-01437-CHC-ROC · Registrar of Contractors · 2024-07-22
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
Seth Washinowski,
COMPLAINANT
v.
New Image Landscape and Pools LLC
License No. ROC 247546,
RESPONDENT
No. 2024A-01437-CHC-ROC
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: July 3, 2024
APPEARANCES: Complainant Seth Washinowski appeared on his own behalf. Respondent New Image Landscape and Pools LLC did not appear.
ADMINISTRATIVE LAW JUDGE: Tammy L. Eigenheer
EXHIBITS ADMITTED INTO EVIDENCE: Administrative Notice was taken of the Hearing Packet submitted by the Registrar of Contractors. Complainant’s Exhibit A was admitted.
_____________________________________________________________________
FINDINGS OF FACT
New Image Landscape and Pools LLC (Respondent) is the holder of License No. 247546 issued by the Arizona Registrar of Contractors (Registrar).
On or about September 9, 2021, Set Washinowski (Complainant) entered into a contract with Respondent for, among other things, a commercial grade misting system.
On or about February 5, 2024, the Registrar received a Complaint against Respondent from Complainant alleging abandonment with respect to the project.
The Registrar assigned the complaint to Investigator Lazaro Bernal. After a jobsite inspection, Investigator Bernal 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 April 10, 2024.
. . . .
DIRECTIVE REQUIREMENTS
You are directed to remedy the following violations by the appropriate means:
Compliance Item: 1 - Commercial Grade Misting System not installed
Investigator’s Observation: Verified. I was shown the backyard area (pergola) where the misting system is to be installed, and I noted that the misting system was not installed.
Respondent is [aware] of the issue and agreed to correct it.
Respondent shall complete project per original contract agreement, properly executed change orders, verbal agreements, and manufacturer’s installation instructions.
Following the issuance of the written directive, Respondent had no conact with Complainant. After the deadline in the directive expired, Investigator Bernal was notified no corrective work had been performed.
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)(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 July 3, 2024. The Registrar mailed copies of the Notice of Hearing to Respondent at its address and email address of record.
A March 23, 2024 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 July 3, 2024.
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 Bernal testified as to his observations of the project during the jobsite inspection.
Complainant testified he had no communication from Respondent at all prior to the deadline in the written directive.
Administrative notice is taken of Respondent’s prior License record on July 22, 2024. Such prior License record reflects that Respondent’s License No. 247546 was first issued on August 18, 2008, and was revoked on July 18, 2024, as a disciplinary action. Such prior License record also reflects that there were no other open complaints and three prior complaints resulting in discipline against Respondent’s license.
CONCLUSIONS OF LAW
This matter lies within the Registrar’s jurisdiction. See A.R.S. § 32-1101 et seq.
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. A.R.S. §§ 41-1092.04 and 41-1092.05(D).
Respondent’s revoked license does not deprive Complainant of his right to prosecute his complaint or prevent the Registrar from determining the merits of the complaint. See A.R.S. § 32-1154(D).
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 did not attempt to complete the corrective work following the Directive being issued. Therefore, Complainant established that Respondent failed to take appropriate corrective action following a written directive from the Registrar in violation of A.R.S. § 32-1154(A)(22).
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. 247546.
It is further recommended that the Registrar require Respondent to pay the sum of $500.00 as a civil penalty pursuant to A.R.S. § 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 A.R.S. § 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, July 22, 2024.
/s/ Tammy L. Eigenheer
Administrative Law Judge
Transmitted by either mail, e-mail, or facsimile to:
Tom Cole, Director
Registrar of Contractors
David Stewart
New Image Landscape and Pools LLC
[email redacted]
Albert Bernal
[email redacted]
Seth Washinowski
[email redacted]
By: OAH Staff