ALJDEC - Licensing
2024A-02536-CHC-ROC · Registrar of Contractors · 2024-11-25
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
Dollie Vowell,
COMPLAINANT
v.
A Team Masonry LLC
License No. ROC 318321,
RESPONDENT
No. 2024A-02536-CHC-ROC
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: November 12, 2024
APPEARANCES: Complainant Dollie Vowell appeared on her own behalf. Joe Darosa appeared via Google Meet on behalf of Respondent A Team Masonry LLC. The Registrar of Contractors Investigator Patricia Schuette appeared via Google Meet.
ADMINISTRATIVE LAW JUDGE: Adam D. Stone
EXHIBITS ADMITTED INTO EVIDENCE: Complainant’s Exhibits A-M were admitted.
_____________________________________________________________________
FINDINGS OF FACT
A Team Masonry (Respondent) is the holder of License No. 318321 issued by the Arizona Registrar of Contractors (Registrar).
On or about March 16, 2023, Complainant hired Respondent to construct a pool and re-landscape her backyard at her residence in Queen Creek, Arizona. The contracted amount was $78,850.00.
On or about February 29, 2024, the Registrar received a Complaint against Respondent from Complainant alleging abandonment of the project.
The Registrar assigned the present complaint to Investigator Patricia Schuette. The jobsite inspection was performed on April 2, 2024.
Investigator Schuette then issued a Written Directive on or about April 19, 2024, which provided in pertinent part 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 May 7, 2024.
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DIRECTIVE REQUIREMENTS
You are directed to remedy the following violations by the appropriate means:
Compliance Item: 1 –Travertine Coping has not been applied to pool and spa.
Investigator’s Observation: Verified. The pool shell and rough plumbing has been installed. Respondent to complete job per contract specifications.
Governing Rule: ARS §32-1154 (A)(1) Abandonment.
Compliance Item: 2 –Pebble Tec Sheen interior has not been applied.
Investigator’s Observation: Verified. The pool shell and rough plumbing has been installed. Respondent to complete job per contract specifications.
Governing Rule: ARS §32-1154 (A)(1) Abandonment.
Compliance Item: 3 –Pump, Filter, LED Light, Gas Heater and Control Panel has not been installed.
Investigator’s Observation: Verified. Only plumbing rough has been completed. Respondent to complete job per contract.
Governing Rule: ARS §32-1154 (A)(1) Abandonment.
Compliance Item: 4 –Water line tile and step line tile has not been installed in pool and spa.
Investigator’s Observation: Verified. The pool shell and rough plumbing has been installed. Respondent to complete job per contract specifications.
Governing Rule: ARS §32-1154 (A)(1) Abandonment.
Compliance Item: 5 –Water feature has not been installed.
Investigator’s Observation: Verified. Only plumbing rough has been installed. Respondent to complete per contract specifications.
Governing Rule: ARS §32-1154 (A)(1) Abandonment.
Compliance Item: 6 –Stacked stone around spa and water feature have not been installed.
Investigator’s Observation: Verified. The pool shell and rough plumbing has been installed. Respondent to complete job per contract specifications.
Governing Rule: ARS §32-1154 (A)(1) Abandonment.
Compliance Item: 7 –Travertine decking has not been installed.
Investigator’s Observation: Verified. No travertine has been installed. Respondent to complete per contract specifications.
Governing Rule: ARS §32-1154 (A)(1) Abandonment.
Compliance Item: 8 –Pet friendly heat reduction turf pad has not been installed.
Investigator’s Observation: Verified. No turf has been installed. Respondent to complete per contract specifications.
Governing Rule: ARS §32-1154 (A)(1) Abandonment.
Compliance Item: 9 –Gas and electric has not been installed for pool and spa.
Investigator’s Observation: Verified. No gas or electric has been installed. Respondent to complete per contract specifications.
Governing Rule: ARS §32-1154 (A)(1) Abandonment.
Compliance Item: 10 –Gas and electric has not been stubbed for BBQ area.
Investigator’s Observation: Verified. No gas or electric has been installed. Respondent to complete per contract specifications.
Governing Rule: ARS §32-1154 (A)(1) Abandonment.
Compliance Item: 11 –Landscaping irrigation package has not been installed
Investigator’s Observation: Verified. Irrigations is not installed. Respondent to complete per contract specifications.
Governing Rule: ARS §32-1154 (A)(1) Abandonment.
Compliance Item: 12 –Paver walkway from patio to side yard has not been installed.
Investigator’s Observation: Verified. No pavers have been installed. Respondent to complete per contract specifications.
Governing Rule: ARS §32-1154 (A)(1) Abandonment.
Compliance Item: 13 –Approx. 15 tons of landscape rock has not been brought in and laid.
Investigator’s Observation: Verified. No rock has been installed or delivered. Respondent to complete per contract specifications.
Governing Rule: ARS §32-1154 (A)(1) Abandonment....
(All errors contained in the original)
On May 17, 2024, Investigator Schuette issued an extension of time until May 31, 2024 to complete the Written Directive.
Investigator Schuette conducted a Compliance Jobsite Inspection on July 23, 2024. In her notes regarding the same Investigator Schuette noted the following in pertinent part:
Compliance Findings:
Compliance Item: 1 –Travertine Coping has not been applied to pool and spa.
Investigator’s Observation: Verified. The pool shell and rough plumbing has been installed. Respondent to complete job per contract specifications.
Governing Rule: ARS §32-1154 (A)(1) Abandonment.
Compliance Findings: No material or labor done since jobsite inspection was completed.
Compliance Item: 2 –Pebble Tec Sheen interior has not been applied.
Investigator’s Observation: Verified. The pool shell and rough plumbing has been installed. Respondent to complete job per contract specifications.
Governing Rule: ARS §32-1154 (A)(1) Abandonment.
Compliance Findings: No material or labor done since jobsite inspection was completed.
Compliance Item: 3 –Pump, Filter, LED Light, Gas Heater and Control Panel has not been installed.
Investigator’s Observation: Verified. Only plumbing rough has been completed. Respondent to complete job per contract.
Governing Rule: ARS §32-1154 (A)(1) Abandonment.
Compliance Findings: No material or labor done since jobsite inspection was completed.
Compliance Item: 4 –Water line tile and step line tile has not been installed in pool and spa.
Investigator’s Observation: Verified. The pool shell and rough plumbing has been installed. Respondent to complete job per contract specifications.
Governing Rule: ARS §32-1154 (A)(1) Abandonment.
Compliance Findings: No material or labor done since jobsite inspection was completed.
Compliance Item: 5 –Water feature has not been installed.
Investigator’s Observation: Verified. Only plumbing rough has been installed. Respondent to complete per contract specifications.
Governing Rule: ARS §32-1154 (A)(1) Abandonment.
Compliance Findings: No material or labor done since jobsite inspection was completed.
Compliance Item: 6 –Stacked stone around spa and water feature have not been installed.
Investigator’s Observation: Verified. The pool shell and rough plumbing has been installed. Respondent to complete job per contract specifications.
Governing Rule: ARS §32-1154 (A)(1) Abandonment.
Compliance Findings: No material or labor done since jobsite inspection was completed.
Compliance Item: 7 –Travertine decking has not been installed.
Investigator’s Observation: Verified. No travertine has been installed. Respondent to complete per contract specifications.
Governing Rule: ARS §32-1154 (A)(1) Abandonment.
Compliance Findings: No material or labor done since jobsite inspection was completed.
Compliance Item: 8 –Pet friendly heat reduction turf pad has not been installed.
Investigator’s Observation: Verified. No turf has been installed. Respondent to complete per contract specifications.
Governing Rule: ARS §32-1154 (A)(1) Abandonment.
Compliance Findings: No material or labor done since jobsite inspection was completed.
Compliance Item: 9 –Gas and electric has not been installed for pool and spa.
Investigator’s Observation: Verified. No gas or electric has been installed. Respondent to complete per contract specifications.
Governing Rule: ARS §32-1154 (A)(1) Abandonment.
Compliance Findings: The gas line has been run and was currently under pressure test. Has not been called for inspection and no other work has been done.
Compliance Item: 10 –Gas and electric has not been stubbed for BBQ area.
Investigator’s Observation: Verified. No gas or electric has been installed. Respondent to complete per contract specifications.
Governing Rule: ARS §32-1154 (A)(1) Abandonment.
Compliance Findings: No material or labor done since jobsite inspection was completed.
Compliance Item: 11 –Landscaping irrigation package has not been installed
Investigator’s Observation: Verified. Irrigations is not installed.
Respondent to complete per contract specifications.
Governing Rule: ARS §32-1154 (A)(1) Abandonment.
Compliance Findings: No material or labor done since jobsite inspection was completed.
Compliance Item: 12 –Paver walkway from patio to side yard has not been installed.
Investigator’s Observation: Verified. No pavers have been installed.
Respondent to complete per contract specifications.
Governing Rule: ARS §32-1154 (A)(1) Abandonment.
Compliance Findings: No material or labor done since jobsite inspection was completed.
Compliance Item: 13 –Approx. 15 tons of landscape rock has not been brought in and laid.
Investigator’s Observation: Verified. No rock has been installed or delivered. Respondent to complete per contract specifications.
Governing Rule: ARS §32-1154 (A)(1) Abandonment.
Compliance Findings: No material or labor done since jobsite inspection was completed.
On July 31, 2024, the Registrar issued a Citation against Respondent, charging possible violations of A.R.S. § 32-1154(A)(1); A.R.S. § 32-1154(A)(16); and A.R.S. § 32-1154(A)(22).
On or about August 15, 2024, Respondent submitted an Answer to the Registrar.
On or about September 3, 2024, a Notice of Hearing was issued setting a hearing on October 18, 2024, at the Office of Administrative Hearings, an independent state agency.
After a continuance, the hearing was held on November 12, 2024.
At hearing, Investigator Schuette testified as to the Registrar’s involvement and the above timeline and findings from her inspections.
Investigator Schuette testified that after the initial jobsite inspection, Respondent e-mailed her informing that the parties had reached an agreement where the case was to be closed. Investigator Schuette tried to confirm the same with Complainant, however, Complainant did not agree that the matter was resolved. However, because of this, Investigator Schuette extended the timeline to complete the Written Directive.
Next, Investigator Schuette testified that she conducted a Compliance Jobsite Inspection on July 23, 2024, and found that there had not been any material progress made on the project, but for the gas line being trenched and attached, and the pool equipment being at the jobsite.
Investigator Schuette added that Respondent did not appear at the Compliance Jobsite Inspection and that while the gas line was connected, it had not been inspected by the city and the trench was still open. Further, it was her understanding that Complainant paid for the pool equipment directly, and it being delivered was not due to Respondent’s efforts.
In addition, Investigator Schuette testified that Respondent was not properly licensed to undertake the project.
Complainant testified that she had paid the contract in full, yet only 50% of the project was completed. Complainant testified that the project was to be completed by December 2023, and to date, it remained incomplete.
Further, Complainant testified that she paid for the pool equipment directly at an expense of over $12,000.00 and agreed with Respondent to deduct the remaining balance of $10,000.00 from the contract.
Complainant testified that between September 2023, and the jobsite inspection in April 2024, no work had been performed. Complainant also testified that she would have to initiate contact with Respondent about the status of the project.
Joe Darosa testified on behalf of Respondent. He testified that he did not abandon the job, was not a bad person, and does not just take people’s money and not perform work.
Mr. Darosa testified that he was always in communication, and that he did not anticipate the project taking so long, nor that inflation would hit his business so hard. Further, he testified that when there were items to complete on the project he would complete the same.
Mr. Darosa also testified that when it looked like things were going bad on the project, he offered Complainant a refund, and to build her an outdoor kitchen at his own expense.
Administrative notice was taken of Respondent’s prior License record on May 17, 2021. Such prior License record reflected that Respondent’s License No. 318321 was first issued on March 5, 2018, and reflected that there was one open case, namely the present case, and one “Resolved/Settled Cases”.
CONCLUSIONS OF LAW
This matter lies within the Registrar’s jurisdiction. See A.R.S. § 32-1101 et seq.
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 preponderance of the evidence established that Respondent abandoned the project in violation of A.R.S. § 32-1154(A)(1). Complainant testified that there was no work performed from March 2023 through April 2024, and there was no evidence provided by Respondent to refute the same. While the tribunal appreciates that the cost of items had increased. Complainant had paid well over 90% of the contracted price for a substantially incomplete project.
The preponderance of the evidence also established that Respondent had contracted to undertake the project outside of the scope of its license in violation of A.R.S. § 32-1154(A)(16).
Finally, the preponderance of the evidence established Respondent failed 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 suspend Respondent’s License No. 318321 for a period of five days.
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)(7), 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, November 25, 2024.
/s/ Adam D. Stone
Administrative Law Judge
Transmitted by either mail, e-mail, or facsimile to:
Tom Cole, Director
Registrar of Contractors
A Team Masonry LLC
[email redacted]
Dollie Vowell
[email redacted]
By: OAH Staff