ALJDEC decisions subject to certification as final

2014A-1447-ROC · Registrar of Contractors · 2015-09-04

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: August 21, 2015, at 8:00 a.m. APPEARANCES: Dale Owen Curtis (“Complainant”) appeared on his own behalf; Brian Richard Pairrett dba Leak Detective (“Respondent”) appeared on his own behalf. ADMINISTRATIVE LAW JUDGE: Diane Mihalsky _____________________________________________________________________

FINDINGS OF FACT 1. According to the public website of the Registrar of Contractors (“the Registrar”), on February 25, 2001, License No. R37R.162688- R for residential swimming pool plumbing and equipment was issued to Respondent. 2. On or about April 11, 2014, Complainant filed a complaint with the Registrar against Respondent’s license based on his alleged failure to repair in a professional and workmanlike manner all the leaks in Complainant’s spa or to repair the cool deck after Respondent jackhammered the deck to repair a leak in the spa at Complainant’s house at 14270 W. Shawnee Trail, Surprise, Arizona 85374. Complainant alleged that the date of the contract was September 13, 2013. 3. Complainant did not state on the complaint the amount of Respondent’s contract. After the Registrar’s staff requested this information, Complainant provided the following dates of service and invoice amounts: (1) September 18, 2013, lnvoice No. 2105, for $200.00; (2) September 23, 2013, Invoice No. 2108, for $175.00; (3) October 7, 2013, Invoice No. 2110, for $700.00; (4) October 12, 2013, Invoice No. 2145, for $315.00; (5) October 31, 2013, Invoice No. 2159, for $825.00. Complainant claimed that in addition to the $2,215.00 that he paid Respondent pursuant to the invoices, at Respondent’s request, Complainant had to pay a landscaper $288.80 to excavate behind the spa, for a grand total of $2,503.80 for the job. 4. The Registrar assigned the complaint to its Investigator Stephen Lawton to investigate. Investigator Lawton testified that he was initially unable to contact Respondent, and that on August 5, 2015, Inspector Lawton performed a jobsite inspection that Respondent did not attend. Inspector Lawton testified that he performed a second jobsite inspection on August 12, 2015, which Respondent but not Complainant attended. 5. Investigator Lawton testified that at the August 12, 2015 inspection, the decking had not been repaired and because the spa jets were closed down, he could not determine whether there was any leaks in the spa. 6. On January 13, 2015, Investigator Lawton on behalf of the Registrar issued a written directive to Respondent, directing it on or before 5:00 p.m. on February 2, 2015, to perform the following repairs: 1. Repair cool deck where concrete was broken out to repair pipe. Correct by Appropriate means.

2. Repair spa jets to working order. Correct by Appropriate means.

7. Complainant testified that although for a short time, he told Respondent that he would allow Respondent to perform repairs, he deemed in his heart that it was not to his benefit to have Respondent back on the property. 8. After Complainant informed Investigator Lawton that he would not allow Respondent back to perform repairs, Investigator Lawton referred the matter to the Registrar’s Legal Department. 9. On or about May 15, 2015, the Registrar issued a Citation, charging cause to discipline Respondent’s license under A.R.S. § 32-1154(A)(3),[1] specifically A.A.C. R4-9-108.[2] Respondent filed a written answer to the citation, denying that cause existed under the charged statute to discipline his license. 10. The Registrar referred the matter to the Office of Administrative Hearings, an independent agency, for an evidentiary hearing. 11. A hearing was held on August 21, 2015. Investigator Lawton testified. Complainant testified and submitted four exhibits. Respondent testified and submitted two exhibits. 12. Respondent submitted his Invoice No. 2108 dated September 18, 2013, that included the the disclaimer, “Kool decking is not included – call Mark’s Repair” with telephone numbers. Investigator Lawton testified that the disclaimer on the invoice was effective to allow Respondent to avoid responsibility for repairing the Kool deck that he jackhammered to reach leaking water lines in Complainant’s spa. 13. Respondent testified that Complainant’s spa is an older model and that when Respondent first arrived on September 18, 2013, the spa had many leaks in the autofill and skimmer and that a pressure test that Respondent performed revealed a leak in the jet line. Respondent testified that Complainant was given the option of fixing the jet line, which would be expensive because a wall would have to be removed, or abandoning the line, and that Complainant chose the less expensive option. Respondent’s account is corroborated by Invoice No. 2108, in the amount of $175.00.[3] 14. Respondent testified that after he abandoned the jet line, Complainant called to complain that a leak had developed in the second jet line. Respondent testified that he told Complainant that Respondent could keep the price down if Complainant hired his landscaper to perform excavation and to check to make sure the line was pressurized. Respondent testified that after he showed the leak to Complainant, he authorized the repair. Respondent’s account is corroborated by Invoice No. 2110, in the amount of $700.00.[4] 15. Respondent testified that after the leak was repaired, Complainant called to complain about additional leaks, agreed to abandon one more jet line to save money, but authorized the repair of other leaks, including one in the plaster seals. Respondent’s account is corroborated by Invoice Nos. 2105, 2145, and 2145.[5] 16. Complainant testified that the spa continued to leak. Complainant testified that he has a separate water metering system for the spa, which Investigator Lawton confirmed, and that according to the metering system, the spa was losing 20 gallons of water a day. 17. Respondent testified that he performed a bucket test after his last repair of the spa, which is standard in the industry, to check for leaks. Respondent testified that he filled a five- gallon bucket with water, poured it in the spa, marked the level of water in the spa, and refilled the bucket. Respondent testified that if the bucket and the spa lost the same amount of water, the loss of water is attributable to evaporation, not a leak. Respondent testified that when he performed the bucket test on Complainant’s spa, both the bucket and the spa got down to four gallons of water. 18. Complainant testified that the loss of two therapeutic jets was unacceptable. Complainant testified that several contractors have told him that the spa needs to be completely remodeled and new lines installed. Complainant submitted Supreme Pools & Saunas, LLC’s proposal to completely remodel the spa for $19,795.14.[6] 19. Respondent testified that the Registrar’s staff told him that he should document his attempts to schedule repairs to comply with the directive in writing. Respondent submitted copies of emails from Complainant indicating that dates that Respondent suggested for repairs “would not work.” Respondent testified that he has not heard back from Complainant and Complainant has not returned his phone calls or emails to schedule a repair. CONCLUSIONS OF LAW 1. This matter lies within the Registrar’s jurisdiction.[7] 2. Complainant bears the burden of proof to establish cause to suspend or revoke Respondent’s license by a preponderance of the evidence.[8] Respondent bears the burden to establish affirmative defenses, such as Complainant’s failure to provide reasonable access to allow Respondent to comply with the January 13, 2015 directive, by the same evidentiary standard.[9] “A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.”[10] 3. Complainant did not establish that Respondent failed to repair the leaks described on its invoices or that Respondent is responsible for repairing the Kool deck. 4. Respondent established that Complainant failed to provide reasonable access to allow Respondent to comply with the January 13, 2015 directive. 5. Therefore, Complainant did not bear his burden to establish cause to suspend or revoke Respondent’s license under A.R.S. § 32-1154(A)(3), specifically A.A.C. R4-9-108. RECOMMENDED ORDER Based on the foregoing, it is recommended that on the effective date of the final Order in this matter, Complainant Dale Owen Curtis’s Complaint in Case No. 2014-1447 against Respondent Brian Richard Pairrett dba Leak Detective’s License No. 162688 be dismissed. 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 five days from the date of that certification. Done this day, September 4, 2015.

/s/ Diane Mihalsky Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director Registrar of Contractors ----------------------- [1] A.R.S. § 32-1154(A)(3) includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, “[v]iolation of any rule adopted by the registrar.” [2] A.A.C. R4-9-108 requires that “[a]ll work shall be performed in a professional and workmanlike manner” and that “[a]ll work shall be performed in accordance with any applicable building codes and professional industry standards.” [3] See Respondent’s Exhibit A at 1. [4] See Respondent’s Exhibit A at 2. [5] See Respondent’s Exhibit A at 3, 4, and 5. [6] See Complainant’s Exhibit 3. [7] See A.R.S. § 32-1154(A). [8] See A.R.S. § 41-1092.07(G)(2); A.A.C. R2-19-119(A) and (B)(1); see also Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952). [9] See A.A.C. R2-19-119(B)(2). [10] Morris K. Udall, Arizona Law of Evidence § 5 (1960).

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