ALJDEC decisions subject to certification as final
SSC-2017A-3813-ROMC-ROC · Registrar of Contractors · 2017-08-18
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
Registrar of Contractors,
COMPLAINANT
v.
Paradise Pools Inc.
License No. 059973
License No. 070530
RESPONDENT
No. SSC-2017A-3813-ROMC-ROC
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: August 4, 2017
APPEARANCES: No one appeared for Respondent; Thomas Raine, Esq. for the Registrar of Contractors
ADMINISTRATIVE LAW JUDGE: Thomas Shedden
_____________________________________________________________________
FINDINGS OF FACT
On August 1, 2017, the Registrar of Contractors (“ROC”) issued an Order of Summary Suspension & Case Consolidation Notice of Promptly Instituted Proceeding (“Order”) setting the above-captioned matter for hearing at 8:30 a.m. August 4, 2017 at the Office of Administrative Hearings.
No representative appeared for Respondent Paradise Pools Inc. at the scheduled time and the hearing was convened in its absence at about 8:45 a.m.
In the Order, ROC presented its determination that the public welfare imperatively required emergency action and it summarily suspended Paradise Pools’ licenses. Citing Ariz. Rev. Stat. § 41-1092.11(B).
Paradise Pools holds license numbers 059973 and 070530 issued by ROC. Maria Teresa Duran is the sole owner of Paradise Pools and the qualifying party on both licenses.
On August 1, 2017, ROC also issued a Supplemental Notice to clarify and detail the specific charges against Paradise Pools.
The Supplemental Notice provided a Statement of Facts and a Formal Statement of Alleged Violations in which ROC alleged that Paradise Pools had committed nine violations of Ariz. Rev. Stat. sections 32-1154(A)(1).
ROC is requesting that Paradise Pools’ licenses be revoked.
Between June 26 and July 24, 2017, ROC received nine complaints against Paradise Pools, all of which alleged abandonment. These nine matters were consolidated into this single proceeding.
In some cases, Paradise Pools had left construction sites in an unsafe condition and it made clear to ROC that it did not have the resources to remedy these unsafe sites.
Because of this public safety issue and to protect the public welfare by eliminating the risk that other consumers would enter contracts with Paradise Pools, ROC issued its Order summarily suspending Paradise Pools’ licenses. The preponderance of the evidence shows that ROC was justified in issuing those suspensions.
On June 24, 2017, ROC received from George Christopher a complaint in case number 2017-3261. Mr. Christopher alleged that he had paid Paradise Pools $24,895, which was the full contract amount, and that Paradise Pools had abandoned the project.
ROC issued to Paradise Pools a Directive ordering it to complete the project. As of the hearing date, Paradise Pools had not completed the work at Mr. Christopher’s home.
On June 26, 2017, ROC received from Julia and Anselmo Rios a complaint in case number 2017-3284. The Rios alleged that they had paid Paradise Pools $19,235.25 on a contract for $25,647.00, and that Paradise Pools had abandoned the project.
Through a letter dated July 13, 2017, Paradise Pools responded to the Rios’s complaint. In that letter, a copy or with was sent to ROC, Ms. Duran explained that Paradise Pools did not have sufficient money or financial resources to remain in business and that the letter should serve as a “resignation” of Paradise Pools’ licenses. The letter shows that Paradise Pools would not be able to complete any “open” contracts.
In a Citation dated July 25, 2017, ROC alleged that Paradise Pools had abandoned the Rios’s project.
On June 26, 2017, ROC received from Dustin Shill a complaint in case number 2017-3288. Mr. Shill alleged that he had paid Paradise Pools $41,906.70 on a contract for $46,563.00, and that Paradise Pools had abandoned the project.
Through a letter dated July 13, 2017, Paradise Pools responded to Mr. Shill’s complaint. In that letter, a copy of which was sent to ROC, Ms. Duran explained that Paradise Pools did not have sufficient money or financial resources to remain in business and that the letter should serve as a “resignation” of Paradise Pools’ licenses. The letter shows that Paradise Pools would not be able to complete any “open” contracts.
In a Citation dated July 26, 2017, ROC alleged that Paradise Pools had abandoned Mr. Shill’s project.
On June 27, 2017, ROC received from Anissa Collins a complaint in case number 2017-3313. Ms. Collins alleged that she had paid Paradise Pools $28,101.75, which was the full contract amount, and that Paradise Pools had abandoned the project.
ROC issued to Paradise Pools a Directive ordering it to complete Ms. Collins’s project. As of the hearing date, the deadline set out in the Directive had not passed. ROC’s Bonny Allan testified that based on the information ROC had received, Paradise Pools was not going to comply with the Directive.
ROC’s investigator Gregory Johndrow had spoken to Ms. Duran about Ms. Collins’s matter and two others on which he was the assigned investigator and she had informed him that Paradise Pools would not be returning to these job sites.
On June 27, 2017, ROC received from Michael Lemon a complaint in case number 2017-3450. Mr. Lemon alleged that he had paid Paradise Pools $26,300.00, which was the full contract amount, and that Paradise Pools had abandoned the project.
ROC issued to Paradise Pools a Directive ordering it to complete Mr. Lemon’s project by July 31, 2017. As of the hearing date, Paradise Pools had not completed Mr. Lemon’s project.
On July 17, 2017, ROC received from John Wilson a complaint in case number 2017-3640. Mr. Wilson alleged that he had paid Paradise Pools $22,500.00 on a contract for $45,000.00, and that Paradise Pools had abandoned the project.
ROC issued to Paradise Pools a Directive ordering it to complete Ms. Collins’s project. As of the hearing date, the deadline set out in the Directive had not passed. Ms. Allan testified that based on the information ROC had received, Paradise Pools was not going to comply with the Directive.
On July 24, 2017, ROC received from Raymond Weber a complaint in case number 2017-3774. Mr. Wilson alleged that he had paid Paradise Pools $9921.00 on a contract for $17,201.00, and that Paradise Pools had abandoned the project.
ROC issued to Paradise Pools a Directive ordering it to complete Mr. Weber’s project. As of the hearing date, the deadline set out in the Directive had not passed. Ms. Allan testified that based on the information ROC had received, Paradise Pools was not going to comply with the Directive.
On July 27, 2017, ROC received from Timothy Franey a complaint in case number 2017-3792. Mr. Franey alleged that he had paid Paradise Pools $34,401.00, which was the full contract amount, and that Paradise Pools had abandoned the project.
ROC has scheduled a job-site inspection to take place at Mr. Franey’s house on August 16, 2017.
On July 7, 2017, ROC received from Marvin Sampson a complaint in case number 2017-3462. Mr. Sampson alleged that he had paid Paradise Pools $42,225.00 on a contract for $84,500.00, and that Paradise Pools had abandoned the project. This was a commercial project at the Adobe Village RV Park.
On July 14, ROC investigator Beau Cruz conducted a job-site inspection at Adobe Village. No representative for Paradise Pools appeared at that inspection and Mr. Cruz concluded that Paradise Pools had abandoned the project.
In a Citation dated July 17, 2017, ROC alleged that Paradise Pools had abandoned the Adobe Village project.
CONCLUSIONS OF LAW
“At a hearing on an agency action to suspend, revoke, terminate or modify on its own initiative material conditions of a license or permit, the agency has the burden of persuasion.” Ariz. Rev. Stat. § 41-1092.07(G)(2).
Unless otherwise provided by law, a party asserting a claim, right, or entitlement bears the burden of proof; a party asserting an affirmative defense has the burden of establishing the affirmative defense. The standard of proof on all issues in this matter is that of a preponderance of the evidence. Ariz. Admin. Code § R2-19-119.
A preponderance of the evidence is:
The 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.
Black’s Law Dictionary 1373 (10th ed. 2014).
Ariz. Rev. Stat. section 32-1154(A) provides that
The holder of a license or any person listed on a license pursuant to this chapter shall not commit any of the following acts or omissions:
*****
Abandonment of a contract or refusal to perform after submitting a bid on work without legal excuse for the abandonment or refusal.
Statutes should be interpreted to provide a fair and sensible result. Gutierrez v. Industrial Commission of Arizona, 226 Ariz. 395, 249 P.3d 1095 (2011)(citation omitted); State v. McFall, 103 Ariz. 234, 238, 439 P.2d 805, 809 (1968) ("Courts will not place an absurd and unreasonable construction on statutes.").
“Statutes shall be liberally construed to effect their objects and to promote justice.” Ariz. Rev. Stat. § 1-211(B).
The purpose of the Registrar’s licensing statutes is to protect the public from unscrupulous, unqualified, and financially irresponsible contractors. See Aesthetic Property Maintenance v. Capital Indem. Corp., 183 Ariz. 74, 900 P. 2d 1210 (1995).
The preponderance of the evidence shows that Paradise Pools is unscrupulous, unqualified, or financially irresponsible.
The preponderance of the evidence shows that Paradise Pools has abandoned all nine contracts at issue without any legal excuse for those abandonments.
The preponderance of the evidence shows that ROC’s decision to summarily suspend Paradise Pools’ license was justified and appropriate.
Paradise Pools’ licenses should be revoked.
ORDER
IT IS ORDERED that on the effective date of the final Order in this matter, Paradise Pools Inc.’s license numbers 059973 and 070530 are revoked.
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 is forty days after the date of that certification.
Done this day, August 18, 2017
/s/ Thomas Shedden
Thomas Shedden
Administrative Law Judge
Transmitted electronically to:
Jeffrey Fleetham, Director
Registrar of Contractors