ALJDEC decisions subject to certification as final

2014A-3306-ROC · Registrar of Contractors · 2015-10-22

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: October 2, 2015 APPEARANCES: Pat Cleveland appeared on behalf of Complainant.[1] Scott Bowman, the Qualifying Party, appeared on behalf of Respondent Legend Pool Builders, Inc. ADMINISTRATIVE LAW JUDGE: Tammy L. Eigenheer _____________________________________________________________________ FINDINGS OF FACT The Arizona Registrar of Contractors (“the Registrar”) issued License No. B- 5.213464-R to Legend Pool Builders Inc. (“Respondent”). On August 13, 2014, the Registrar received a Complaint against Respondent from James B. Cleveland alleging that Respondent failed to complete several items related to the installation of a swimming pool at his residence. Included in the Complaint was the following: Electrical – low voltage work not completed Hand rail not installed per addendum Salt water conversion not completed Drainage issues Landscape rock and gravel not completed Tile work needs repairs No warrenty [sic] information or list of subs

After the Registrar assigned the Complaint to an investigator, the investigator issued a Directive from the Registrar (“Directive”) on November 17, 2014, that provided as follows: 1. Low voltage lighting not completed on the ends of the fountain wall and in the fountain. Correct by Appropriate Means. 2. Handrail not installed as agreed to between both parties. Correct by Appropriate Means. 3. Pool would be converted to salt water after a 30 day waiting period for the hardening process for the pebble tec. Correct by Appropriate Means. 4. Drainage of rain water is flowing into the pool and drainage system Respondent installed is inadequate. Correct by Appropriate Means. 5. Tile around the skimmer is not secure and grout at the fountain area is lacking. Correct by Appropriate means.

Respondent failed to take appropriate corrective action to comply with the Directive. The Registrar issued a Citation to Respondent charging a possible violation of A.A.C. R4-9-108, and therefore A.R.S. § 32-1154(A)(3). Mr. Bowman acknowledged at hearing that the low voltage lighting, the handrail, and the conversion to salt water were not completed because Complainant failed to make the last payment installment of the contract, $2000.00, that was due prior to plaster, pebble, or other surfacing. Complainant admitted it did not make the last payment on the contract and had paid $30,498.00 of the $32,498.00 due on the contract. Mr. Bowman testified that even if Respondent had money problems, the $2,000.00 final payment would have been more than enough to pay for those final items to be completed. Mr. Bowman asserted that with respect to the drainage, the problem was with Complainant’s existing pavers in the area and that Respondent could not be held responsible for changing the slope of the Complainant’s existing conditions when the installation of the swimming pool did nothing to cause the problem. The photographs offered by Complainant show that the collection of water occurs largely in the area of the patio pavers. There is no evidence that the rain water flows into the swimming pool. Respondent also testified that drainage system was inspected on July 10, 2014, and passed that inspection. As to the tile issue, Mr. Bowman testified that the broken tile shown in the photograph submitted by Complainant was not broken or missing when the project was complete or he would have noticed it on the final walkthrough and repaired it at that time. Mr. Bowman also testified that the pool is under warranty and if Complainant had any issues or concerns, Respondent would address any problems and had done so. Administrative notice is taken of Respondent’s prior License record as reflected on the Registrar’s public website on October 22, 2015. Such prior License record reflects that Respondent’s License No. B-5.213464-R license had been suspended since December 5, 2014, due to a lack of bond. CONCLUSIONS OF LAW 1. This matter lies within the Registrar’s jurisdiction. See A.R.S. § 32- 1101 et seq. 2. The administratively suspended status of Respondent’s license does not preclude Complainant from pursuing an administrative remedy nor preclude the Registrar from conducting this disciplinary proceeding.[2] 3. Complainant bears the burden of proof to establish Respondent’s statutory violations by a preponderance of the evidence. See A.R.S. § 41-1092.07(G)(2); A.A.C. R2-19-119(A); and A.A.C. R2-19-119(B)(1); see also Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952). “A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.” Morris K. Udall, Arizona Law of Evidence § 5 (1960). 4. The evidence of record shows Respondent did not complete the lighting, handrail, and conversion to salt water in accordance with the contract. However, the undisputed evidence also established that Complainant failed to fulfill its obligation to pay the full amount payable under contract before the pebble tec finish was installed. Respondent’s failure to complete those items is directly attributable to Complainant’s failure to make the final payment. As such, those items are not an appropriate basis for discipline. 5. The evidence of record shows there is a drainage issue in an area near the swimming pool. The photographs show the problem is largely confined to the existing paver patio that was not altered by Respondent. Complainant failed to show how this drainage problem was caused by or should be corrected by Respondent. 6. The evidence of record shows that there is a broken tile around a drain, but there was no evidence that the tile was broken as a result of Respondent’s installation or that Respondent has refused to repair that tile in compliance with the warranty on the swimming pool. 7. Therefore, based on Complainant’s failure to fulfill its obligation under the contract, Respondent’s failure to complete the final items does not necessitate a finding that Respondent did not perform the work in a professional and workmanlike manner in violation of A.A.C. R4-9-108,[3] and therefore A.R.S. § 32-1154(A)(3). RECOMMENDED ORDER Based on the foregoing, it is recommended that on the effective date of the Order, the Registrar shall dismiss the Complaint filed by James B. Cleveland. 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 40 days from the date of that certification. Done this day, October 22, 2015.

/s/ Tammy L. Eigenheer Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director Registrar of Contractors ----------------------- [1] Pat Cleveland is the widow of James B. Cleveland who passed away between the filing of the compliant and the hearing. [2] See A.R.S. § 32-1154(C), which provides that “[t]he expiration, cancellation, suspension or revocation of a license . . . shall not deprive the registrar of jurisdiction to proceed with any investigation of or action or disciplinary proceeding against such license, or to render a decision suspending or revoking such a license . . . .” [3] 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.” 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.”

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