ALJDEC - Licensing
2024A-07243-CHC-ROC · Registrar of Contractors · 2025-03-17
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
Liz Westlake,
COMPLAINANT,
v.
Aqua Group LLC
License No. ROC 311651,
RESPONDENT.
No. 2024A-07243-CHC-ROC
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: February 25, 2025.
APPEARANCES:
For Complainant: Liz Westlake and Alan Westlake.
For Respondent: Daniel Henderson.
For the Registrar of Contractors: Investigator Steven Avila.
ADMINISTRATIVE LAW JUDGE: Samuel Fox
EXHIBITS ADMITTED INTO EVIDENCE: Administrative notice was taken of the Notice of Hearing Packet submitted by the Registrar of Contractors.
_____________________________________________________________________
FINDINGS OF FACT
Aqua Group LLC, (Respondent) was the holder of License Number 311651 issued by the Arizona Registrar of Contractors (Registrar) on February 28, 2017.
On or about March 7, 2023, Liz Westlake (Complainant) and her husband Al Westlake entered into a contract with Respondent for, among other things, pool construction.
On or about June 25, 2024, Complainant filed a Licensed Complaint Form with the Registrar, claiming abandonment and poor work.
The Registrar assigned the complaint to Investigator Steven Avila, who issued a Jobsite Inspection Notice on July 5, 2024, scheduling the inspection for July 24, 2024.
Investigator Avila conducted the jobsite inspection on July 24, 2024, and Respondent was not present. Following the inspection, Investigator Avila issued a Written Directive From the Registrar to Respondent on August 21, 2024 that provided as follows:
You are directed to remedy the following violations by the appropriate means:
Complaint Item: 1 - Failure to supply spa cover as agreed upon in contract.
Investigator’s Observation: At the time of the inspection the homeowner had still not received a spa cover. Per the contract provided dated 3/1/2023 and signed 3/7/2023 the statement portion states that the homeowner would receive an 8' x 8' spa cover by Arizona Spa Covers. Allegation is verified. Respondent shall correct by the appropriate means.
Governing Rule: Departure from or disregard of: (a) Plans or specifications in any material respect that is prejudicial to another without consent of the owner or the owner's duly authorized representative and without the consent of the person entitled to have the particular construction project or operation completed in accordance with such plans and specifications and code.
A.R.S. § 32-1154(A)(2)(a)
The Written Directive required Respondent to notify Investigator Avila of Respondent’s compliance with the directive prior to 5:00 p.m. on September 6, 2024.
On September 17, 2024, Complainant informed Investigator Avila that no corrective work had been performed on the project.
On September 18, 2024, the Registrar issued a Citation against Respondent, finding cause to charge Respondent with violations of A.R.S. § 32-1154(A)(1) and A.R.S. § 32-1154(A)(22).
Respondent submitted an Answer to the Citation on October 2, 2024, stating that the job was complete.
The Registrar referred the matter to the Office of Administrative Hearings, an independent state agency, for an evidentiary hearing.
On October 31, 2024, the Registrar issued a Notice of Hearing on Contested Case setting the hearing for December 10, 2024, at 1:00 PM.
On or about November 22, 2024, Complainant requested that the hearing be continued. The hearing was continued to December 24, 2024, and Respondent requested a further continuance. On or about December 18, 2024, the parties were notified the hearing was continued to February 25, 2025. The order granting the continuance 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 February 25, 2025.
Investigator Avila testified in support of his investigation and findings.
Complainant testified her discontent with the process, and that Respondent never provided the spa cover as was required in their contract.
Mr. Westlake testified he thought they did everything correctly. He also supported that the spa cover was not provided.
Mrs. Westlake and Mr. Westlake wanted to address additional issues that they had with Respondent’s work.
Respondent testified that he did not provide the cover because he could not because of extenuating circumstances.
Administrative notice was taken of Respondent’s prior License record on March 13, 2025. According to that record, Respondent’s License No. 311651 was suspended on January 21, 2025; and there were 4 open complaints, 1 disciplined case, and 3 resolved/settled complaints against Respondent’s license.
CONCLUSIONS OF LAW
This matter lies within the Registrar’s jurisdiction.
Respondent’s 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. Respondent bears the burden of proof to establish an affirmative defense 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.”
For the purposes of this hearing, Respondent only had notice of the alleged violations in the Citation. Accordingly, this Tribunal can only find violations of law that appeared in the Citation. Even if a complainant included more alleged violations in their complaint, only those alleged violations that were identified by the Investigator as deficiencies and deemed uncorrected are noticed in the Citation. As stated in the Citation, “[t]he Registrar investigated this matter and [found] cause to charge Respondent with violation(s).” Where the investigator did not find cause to charge Respondent, charges were not incorporated into the Citation.
The Registrar’s process provides the Respondent an opportunity to correct its deficient work by appropriate means; without that opportunity, the alleged deficiency is not ripe for hearing.
The preponderance of the evidence established that Respondent abandoned the project or refused to perform work without a legal excuse in violation of A.R.S. § 32-1154(A)(1).
The preponderance of the evidence 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 for 2 days Respondent’s License No. 311651.
It is further recommended that the Registrar require Respondent to pay the sum of $250.00 as a civil penalty pursuant to A.R.S. § 32-1154(E). 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, March 17, 2025.
/s/ Samuel Fox
Administrative Law Judge
Transmitted by either mail, e-mail, or facsimile to:
Tom Cole, Director
Registrar of Contractors
Liz Westlake
[email redacted]
Steven Avila
[email redacted]
Aqua Group LLC
Email [email redacted]
By: OAH Staff