ALJDEC decisions subject to certification as final

06F-M2537-ROC · Registrar of Contractors · 2007-01-18

STATE OF ARIZONA IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: January 3, 2007 APPEARANCES: Complainant: Mammie Fesko and Gregory Fesko appeared, pro per. Respondent: Michael James Pawlak, corporate officer, appeared, pro per. ADMINISTRATIVE LAW JUDGE: Brian E. Smith _____________________________________________________________________ Evidence and testimony were presented and, based on the entire record in this matter, the following Findings of Fact, Conclusions of Law and Recommended Order are made:

FINDINGS OF FACT 1. This matter convened for hearing at the time, date and place set forth in the Registrar of Contractors’ Notice of Hearing dated December 1, 2006. 2. Complainants Mammie Fesko and Gregory Fesko (“Complainants”) are the owners of a residence located at 2373 N. Grand Drive, Apache Junction, Arizona (“premises/project”). 3. Respondent Acapulco Spa Pool Company (“Acapulco Spa”) is a corporation which holds Arizona Contractor’s License No. 155813, Class B- 05R (Factory Fabricated Pools and Accessories) issued by the Registrar of Contractors on June 8, 2000. Adam Michael Pawlak (“Pawlak”) is a corporate officer and the qualifying party for the license. A review of the licensing database maintained by the Registrar of Contractors indicates that this license was suspended July 1 -10, 2006 (non-renewal). 4. Respondent Acapulco Fiberglass Pools (“Acapulco Fiberglass”) is a corporation which holds Arizona Contractor’s License No. 2125189, Class B- (General Swimming Pool) issued by the Registrar of Contractors on December 29, 2005, respectively. Pawlak is a corporate officer and the qualifying party for the license. 5. Complainants filed a complaint with the ROC on June 21, 2006 wherein they alleged, inter alia, that the “pool location submitted on plans for building permit were incorrect as submitted by Acapulco Pools.[1] Plans were approved by city of Apache Junction but the drawing designated the pool in the wrong location.” Complainants further alleged that the city of Apache Junction subsequently notified them that the “pool was installed in the wrong location and that its current location is within an easement designated by city zoning.” Complainants also contend that Acapulco Spa refused to move the pool and comply with city required codes. 6. Registrar of Contractors Inspector Jack Clark (“Clark”) conducted a jobsite inspection on July 31, 2006 and issued a Corrective Work Order on August 10, 2006 wherein he determined that corrective work was required on the two items set forth therein: (1) Pool encroaches on the utility easement; and, (2) No Inspections.[2] 7. On September 28, 2006, the Registrar issued a CITATION AND COMPLAINT in Case Nos. M06-2537 and M06-2537W charging Respondent with possible violations of A.R.S. §32-1154A 2, 7 and 23. 8. Respondent Acapulco Spa filed an answer October 1, 2006 wherein it admitted that the plans were drawn “mirrored to where the actual location of the pool is currently.” Respondent further asserted, inter alia, that, notwithstanding the aforementioned error, “if you were to mirror that image and see the actual location, you would find that this is exactly where the homeowner wanted the pool to be.” Referencing number 5 of the parties’ contract, Respondent also contends that “it is the buyer’s responsibility to ‘indicate the exact site of the pool and accept responsibility of the pool being on his property and not improperly intruding on any easement.’” Respondent also disputed the need for and/or timing of any inspections. 9. Complainant Gregory Fesko (“G. Fesko”) testified and submitted Exhibits 3, 4, 7, 23 and 24 which were marked, admitted and considered. Dennis Dixon (“Dixon”) and Tracy Post (“Post”) also appeared and testified on behalf of Complainants. 10. Pawlak testified on behalf of Respondent Acapulco Spa[3] and submitted Exhibits 1 and 2, which were marked, admitted and considered. 11. On the evidence and testimony of record, the following salient facts were adduced at the hearing and are important to note: a. On or about March 4, 2006, Complainants contracted with Respondent to install a 12’ x 25’ fiberglass pool on the premises. (Exhibit 1) Contemporaneously therewith the parties executed a Contract Addition the terms of which were incorporated into the parties’ contract. (Exhibit 2) b. On or about March 21, 2006, a Building Permit was issued by the city of Apache Junction for the subject pool. (Exhibit 4) c. On or about March 28, 2006, the city of Apache Junction approved a site plan submitted by Pawlak, on behalf of Respondent Acapulco Spa, for the pool to be installed on the premises. (Exhibit 3) Pawlak acknowledged in Acapulco Spa’s answer and at the hearing that the pool location as indicated on the submitted site plan was drawn “mirrored” and, therefore, incorrect. As a result, the site plan did not accurately depict the intended location of the pool. d. G. Fesko testified that at the time Complainants paid Pawlak $1,000.00 earnest money on the contract, they also provided him with the site plan, which included property dimensions, house location and all easements, for submission to and approval by the city of Apache Junction. e. Prior to commencing excavation, G. Fesko and Pawlak walked the project and G. Fesko marked the location where Complainants wanted the pool which ran along the edge of but did not encroach upon the easement. G. Fesko testified that contemporaneous with the marking of the pool, he informed Pawlak of the location of the subject easement and advised that the pool could not intrude into it. f. G. Fesko further testified that the pool markings had to subsequently be redrawn on several occasions due to being washed away by weather and that someone from Respondent’s company and/or at its direction, including the excavator who dug the hole for the pool, remarked the pool location. g. G. Fesko testified that he was present “on and off” during the excavation of the pool hole. G. Fesko observed that the hole was dug larger than the actual pool size to accommodate backfilling as was related by an unidentified worker. This included some excavation into the easement. h. On or about June 21, 2006, subsequent to excavation of the hole and placement of the pool therein, representatives from the city of Apache Junction zoning department advised Complainants that they would have to drain and backfill the pool because Complainants did not have a permit for the as built location of the pool. G. Fesko testified that until that time he had not seen a copy of the permit or drawings submitted by Pawlak which placed the pool at the northeast corner of the property. (Exhibit 4) i. Paragraph 5 of the contract provides that “[t]he buyer agrees to indicate the exact site of the pool and accept responsibility of the pool being on his property and not improperly intruding on any easement.” j. G. Fesko testified that he complied with Paragraph 5 of the contract when he identified and marked the location of the pool with Pawlak and advised Pawlak of the easement’s location as depicted in the site plan. G. Fesko further opined that Respondent’s excavator dug the hole larger than the pool size to accommodate backfilling but he was never told the extent of the over sizing. G. Fesko never notified Pawlak during the course of excavation that the hole was in the wrong place. k. Pawlak testified that the pool is incorrectly located on the site plan Respondent submitted to Apache Junction due to his drawing it in a mirror image which was a mistake. When he learned of this error, Pawlak redrew the site plan based on information provided by Complainants and faxed a corrected version to Apache Junction Planning and Zoning (Exhibit 7). At that time, Pawlak did not visit the project to re-measure and/or re- draw pool to ensure it was correctly located and not encroaching on an easement. l. Pawlak further testified that Complainants indicated that they wanted the pool to start parallel to the edge of the house starting at the southwest corner. Pawlak acknowledged that the pool is not located where Complainants requested it be placed. Pawlak also stated that no one ever told him where the subject easement was located when laying out the pool; G. Fesko only told him where the pool was to be placed. Pawlak further stated that the site plan (Exhibit 4) did not show an easement. m. Pawlak denied anyone on behalf of Respondent repainted the markings where the pool was to be located after G. Fesko did it with him present. n. Pawlak further stated that, pursuant to Paragraph 5 of the contract, Complainants were responsible for marking the location where the pool was to be installed and, in this instance, Respondent simply followed the directives of Complainants in the pool’s placement. o. Pawlak also testified that he did not check placement of the pool until it was installed. p. The actual location of the pool is not accurately depicted on the revised site plan submitted to Apache Junction. (Exhibit 7) q. The as built pool encroaches 3’4” into the subject easement. r. Dixon, acting Development Services Director/Building Safety Manager for Apache Junction, and Post, Apache Junction Building Inspector, testified that no inspections were requested by anyone on the subject pool. s. Dixon also testified that no inspection is required by Apache Junction at the time a pool hole is dug. Apache Junction does not require an inspection of fiberglass pool until a safety barrier is being installed and/or any water is being placed in the pool. t. According to Post, the subject pool is not in the location indicated on the site plan. u. No evidence was presented to establish any responsibility of Respondent Acapulco Fiberglass Pool Company in this matter.

APPLICABLE LAW The CITATION AND COMPLAINT issued by the Registrar of Contractors in Case Nos. M06-2537 and M06-2537W charged Respondent with possible violations of A.R.S. §32-1154A 2, 7 and 23. Those statutory sections require that the holder of a license or person listed on the license shall not commit the following:

2. Departure from of disregard of plans or specifications or any building codes of the state or any political subdivision of the state in any material respect which is prejudicial to another without consent of the owner or his 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 code. …

7. The doing of a wrongful or fraudulent act by the licensee as a contractor resulting in another person being substantially injured. …

23. Failure to take appropriate corrective action to comply with this chapter or with rules adopted pursuant to this chapter without valid justification within a reasonable period of time after receiving written directive from the registrar. The written directive shall set forth the time within which the contractor is to complete the remedial action. The time permitted for compliance shall not be less than fifteen days from the date of issuance of the directive. A license shall not be revoked or suspended nor shall any other penalty be imposed for violation of this paragraph until after a hearing has been held pursuant to the provisions of this article.

CONCLUSIONS OF LAW 1. The Registrar of Contractors has jurisdiction over this matter pursuant to A.R.S. § 32-1101, et. seq., which authorizes the Registrar to impose disciplinary sanctions against licenses for violations of A.R.S. § 32-1154. 2. To warrant such sanctions by the Registrar, Complainants must demonstrate by a preponderance of the evidence that Respondent violated any one, or more, of the statutory sections cited. Proof by a “preponderance” means that “the evidence is sufficient to persuade the finder of fact that the proposition is more likely true than not.” In re Arnold and Baker Farms, 177 B.R. 648 (9th Cir. BAP (Ariz.) 1994). See also, Culpepper v. State of Arizona, 187 Ariz. 43, 930 P.2d 508 (App. 1996). It is “evidence which is of greater weight or more convincing than the evidence which is offered in opposition to it; that is, evidence which as a whole shows that the fact sought to be proved is more probable than not.” Black’s Law Dictionary 1182 (Rev. 6th ed. 1990). 3. The purpose of licensing Arizona contractors is to regulate the conduct of contracting and protect the public from unscrupulous acts. Beazer Homes Ariz., Inc. v. Goldwater, 196 Ariz. 98, 101, 993 P.2d 1062, 1065 (App. 1999); Better Homes Constr. v. Goldwater, 203 Ariz. 295, 300, 53 P.3d 1139 (App. 2002). The statutory purpose is to prevent unscrupulous or financially irresponsible contractors from deceiving and taking advantage of those who engage them to build. Sobel v. Jones, 96 Ariz. 297, 394 P.2d 415 (1964). 4. This tribunal determines and concludes that Complainants established by a preponderance of credible, probative and relevant evidence that Respondent violated A.R.S. §32-1154A (2). Pawlak acknowledged that, due to his mistake, the pool as installed was not placed in the location indicated on the site plan submitted to the city of Apache Junction. It was not until this error was brought to his attention by Complainants that he submitted an amended site plan to Apache Junction. Notwithstanding such correction, the weight of the evidence adduced at the hearing established that the as built pool is still not located as indicated on the approved site plan. 5. This tribunal further determines and concludes that Complainants established by a preponderance of credible, probative and relevant evidence that Respondent violated A.R.S. §32-1154A (23) as pertains to Items 1 and 2 of the Corrective Work Order. A factual dispute exists between G. Fesko and Pawlak regarding whether anyone subsequently repainted the pool’s proposed location after G. Fesko and prior to excavation. Notwithstanding such dispute, G. Fesko credibly testified that he painted Complainants’ desired location of the pool in Pawlak’s presence, advised Pawlak of the existence of the subject easement and that the outline for the pool was repainted several times due to weather effects. Given Pawlak’s status and experience as a pool contractor, his failure to (1) twice correctly draw the pool location on site plans submitted for Apache Junction approval and/or (2) acknowledge and/or recognize the existence of an easement on the site plan lends little, if any, credibility to his version of the facts and Respondent’s reliance on Paragraph 5 of the parties’ contract to make Complainants culpable for the pool placement in this instance. In addition, it was uncontroverted that no inspection was requested by Respondent on the subject pool. 6. It is further determined and concluded that the foregoing violations in Conclusions of Law 4 and 5 are deemed by this tribunal to have been wrongful and have resulted in substantial injury to Complainants. Therefore, violations of A.R.S. §32-1154A (7) have been proven.

RECOMMENDED ORDER On the basis of the foregoing, IT IS RECOMMENDED that, commencing sixty (60) days from the effective date of the Registrar’s Order entered in this matter, the Class B-05R license of Respondent Acapulco Spa be suspended until the Registrar of Contractors receives written proof that Respondent has caused by appropriate action, by a licensed subcontractor as necessary, the relocation of the subject pool and provision and compliance with all necessary and appropriate inspections attendant to installation of the subject pool as required by the subject Corrective Work Order. IT IS FURTHER RECOMMENDED that, Respondent Acapulco Spa and/or its duly licensed subcontractor accomplish the above-described work in a proper workmanlike manner or is denied access to perform same on or before the effective date of this Order then, in that event, no license suspension shall take place due to Respondent Acapulco Spa’s failure to comply with this portion of the Order. Respondent shall notify the Registrar of Contractors in writing of the denial of reasonable access to the project. IT IS FURTHER RECOMMENDED that the Citation and Complaint in Case No. M06-2537W against the Class B-05 license of Respondent Acapulco Fiberglass Pools Inc. be dismissed.[4] Done this day, January 18, 2007.

______________________ Brian E. Smith Administrative Law Judge

Original transmitted by mail this ____ day of ____________, 2007, to:

Registrar of Contractors Fidelis V. Garcia Legal Department 800 West Washington, 6th Floor Phoenix, AZ 85007

By _______________________ ----------------------- [1] The named Respondent in the complaint was “Adapulco [sic] Spa Pool Company” license no. 155813. [2] Both parties acknowledged at the hearing that they were informed of Inspector Clark’s inability to attend the hearing and that neither moved for a continuance based on such fact. [3] Pawlak testified that only Respondent Acapulco Spa, Arizona License No. 155813, contracted with Complainants and, therefore, was subject to potential disciplinary action. Complainants did not controvert such assertion and, as noted above, specifically listed this license in their complaint. [4] 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 in this matter will be forty (40) days from the date of that certification.

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Office of Administrative Hearings 1400 West Washington, Suite 101 Phoenix, Arizona 85007 (602) 542-9826