ALJDEC - Licensing
2024A-06904-CHC-ROC · Registrar of Contractors · 2024-12-04
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
Blaine McHone,
COMPLAINANT
v.
Victory Contracting LLC
License No. ROC 321316,
RESPONDENT
No. 2024A-06904-CHC-ROC
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: November 15, 2024
APPEARANCES: Blaine McHone, Complainant; Steven Avila, Registrar of Contractors Investigator
ADMINISTRATIVE LAW JUDGE: Nicole Robinson
EXHIBITS ADMITTED INTO EVIDENCE: Registrar of Contractors Notice of Hearing Packet (Packet)
FINDINGS OF FACT
Victory Contracting, LLC (Respondent) is the holder of License No. ROC 321316 issued by the Arizona Registrar of Contractors (Registrar).
On or about October 26, 2023, Blaine McHone (Complainant) entered into a contract with Respondent for, among other things, remodeling his existing residential swimming pool and adding a spa to the in ground pool. The contract was in the total amount of $69,500.00. The work on the project began on November 4, 2023 and was expected to take six to eight weeks to complete. At the beginning of the project, Complainant visited Respondent’s Tempe, Arizona showroom to pick out materials. Respondent stopped working on the project on or about June 14, 2024 while the project remained incomplete.
On or about June 17, 2024, the Registrar received a Complaint against Respondent from Complainant alleging poor work with respect to the project.
The Registrar assigned the Complaint to Investigator Steven Avila. On July 10, 2024, a jobsite inspection commenced, led by Investigator Avila with Complainant and Respondent representative, Cruz Sandoval, present. After the jobsite inspection, Investigator Avila issued a written directive to Respondent on July 19, 2024 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 August 2, 2024.
. . . .
DIRECTIVE REQUIREMENTS
You are directed to remedy the following violations by the appropriate means:
Complaint Item 1: Baja deck was not patched correctly. Tried Twice.
Investigator’s Observation: Prior to the inspection the homeowner had run some water on the exterior of the pool shell. When the inspection began the repair could be seen dry. As the inspection progressed water seepage could be seen entering the interior of the pool between the repair and existing pool shell. The water could be seen entering the shell through a crack at the perimeter of the repairs where cracking and voids were present. Allegation is verified. You may not perform or hire other contractors to perform work that is outside the scope of your license.
Respondent holds both CR-08 Floor Covering and CR-36 Plastering licenses. The scope of the two licenses does not allow for the modifications involved in the addition of the umbrella holder. The Respondent will need to correct this issue by the appropriate means. Since the Respondent is not appropriately licensed to do this work, the appropriate means will be the two parties coming to a resolution to have an appropriately licensed contractor complete the corrective work.
. . . .
Complaint Item 2: Drains in hot tub are too close to wall.
Investigator’s Observation: At the time of the inspection the homeowner brought forth a pvc drain line which was positioned approximately one inch from the hot tub bench. The respondent stated that he drain line was intended to accept a 6-8 inch drain. It is determined that the given the position of the drain line and expected size of the drain the line is too close to the bench to function appropriately. Allegation is verified. You may not perform or hire other contractors to perform work that is outside the scope of your license. Respondent holds both CR-08 Floor Covering and CR-36 Plastering licenses. The scope of the two licenses does not allow for the modifications involved in the moving of the drain line. The Respondent will need to correct this issue by the appropriate means. Since the Respondent is not appropriately licensed to do this work, the appropriate means will be the two parties coming to a resolution to have an appropriately licensed contractor complete the corrective work.
. . . .
Complaint Item 4: Contractor failed to meet required elements for the contact. Time frame, ROC clause
Investigator’s Observation: Respondent shall be issued a warning letter for not meeting the minimum element of a contract as listed in A.R.S 32-1158.
. . . .
Complaint Item 7: Contractor still insists that his license is sufficient for the work he is doing.
Investigator’s Observation: It had been verified that respondent has contracted and performed work outside of the scope the licenses possessed. The Respondent holds CR-08 Floor Covering and CR-36 Plastering licenses which would not allow for multiple items performed including the addition of the hot tub, Plumping, Electrical and Excavation. These items would require additional licensing to perform and sub-contract. Therefore the allegation that the respondent has contracted outside the scope of the licenses held. Allegation is verified. You may not perform or hire other contractors to perform work that is outside the scope of your license.
The Respondent will need to correct this issue by the appropriate means. Since the Respondent is not appropriately licensed to do this work, the appropriate means will be the two parties coming to a resolution to have an appropriately licensed contractor complete the corrective work.
. . . .
All errors in original.
Following the issuance of the written directive, Respondent did not perform any additional work on the project. Noting that per Respondent’s CR-08 Floor Covering and CR-36 Plastering licenses, those licenses alone would not permit Respondent to perform or correct some of the items in the Written Directive. After the deadline in the directive expired, Investigator Avila was notified that no corrective work was performed by Respondent.
On August 29, 2024, 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); Ariz. Rev. Stat. § 32-1154(A)(12), namely Ariz. Rev. Stat. § 32-1158; Ariz. Rev. Stat. § 32-1154(A)(16); 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 November 14, 2024. The Registrar mailed copies of the Notice of Hearing to Respondent at its address and email address of record.
An October 4, 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 November 14, 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.
HEARING EVIDENCE
Complainant testified that he had no idea that Respondent was not licensed as a licensed pool builder. Complainant described the elaborate showroom he visited in Tempe, Arizona and believed that everything was legitimate and aboveboard.
Respondent did not appear at the Tribunal hearing. However, in its written Answer, the company stated, in pertinent part, as follows:
We acknowledge the violations cited and take full responsibility for ensuring compliance with the Registrar’s standards. Victory Contracting LLC is actively working to obtain the necessary additional licensure required for certain projects. In instances where the work falls outside the current scope of our license, we are committed to engaging qualified, licensed subcontractors to complete those portions of the project. This approach ensures that all work is completed in full compliance with state regulations, and we are taking the appropriate steps to prevent future violations. We will continue to monitor our projects closely and make the necessary adjustments to remain within the scope of our licensure.
Investigator Avila testified that Respondent did not possess the necessary license to perform the type of work needed to remodel a pool and build a spa into the existing in ground pool. In addition, Respondent was not permitted to subcontract a licensed pool builder to perform any appropriate corrective action on the project.
Administrative notice is taken of Respondent’s prior License record on November 15, 2024. Such prior License record reflects that Respondent’s License No. ROC 321316 was first issued on July 17, 2018, and was suspended on September 4, 2024, due to a Recovery Fund payout. Such prior License record also reflects that there was one open complaint and three prior complaints resulting in discipline against Respondent’s license.
CONCLUSIONS OF LAW
This matter lies within the Registrar’s jurisdiction.
The Notice of Hearing that the Registrar mailed to Respondent at its address and email address of record was reasonable, and Respondent is deemed to have received notice of the hearing.
Respondent’s administratively suspended license does not deprive Complainant of his right to prosecute his complaint or prevent the Registrar from determining the merits of the complaint.
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.”
In this case, 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 Ariz. Rev. Stat. § 32-1154(A)(3), namely Ariz. Admin. Code R4-9-108(A).
In regards to the written contract, the evidence does not establish that Respondent failed to meet all elements listed in Ariz. Rev. Stat. § 32-1158. The Tribunal was only presented with a partial contract whereby there appears to be three pages but only two pages are in evidence. As such, Complainant failed to establish that Respondent did not comply with the Registrar’s statue in violation of Ariz. Rev. Stat. § 32-1154(A)(12).
The evidence clearly established that Respondent’s CR-08 and CR-36 licenses did not allow for remodeling a pool and building a spa add-on to the existing pool. A higher level of license, a B5 license, would need to be obtained by Respondent and that never occurred. Therefore, Complainant established that Respondent knowingly contracted beyond the scope of the license or licenses of the licensee in violation of Ariz. Rev. Stat. § 32-1154(A)(16).
Furthermore, 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 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. ROC 321316 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 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, December 4, 2024.
/s/ Nicole Robinson
Administrative Law Judge
Transmitted by either mail, e-mail, or facsimile to:
Tom Cole, Director
Registrar of Contractors
[email redacted]
Blaine McHone
4276 E Michelle Ave
Gilbert, AZ 85234
[email redacted]
Steven Avila
[email redacted]
Victory Contracting LLC
1210 W Alameda Dr Ste 111
Tempe, AZ 85282
[email redacted]
By: OAH Staff