ALJDEC decisions subject to certification as final

2016A-1902-ROC · Registrar of Contractors · 2016-10-18

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Sharyl Lin Bancroft

COMPLAINANT,

v.

Johnson Pool Service & Repair LLC,

License No: 288814,

RESPONDENT.

No. 2016A-1902-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: October 11, 2016

APPEARANCES: Sharyl Lin Bancroft (Complainant) appeared on her own behalf. No one appeared on behalf of Respondent Johnson Pool Service & Repair, LLC.

ADMINISTRATIVE LAW JUDGE: Suzanne Marwil

_____________________________________________________________________

Hearing was convened to determine whether Respondent violated state law as alleged by Complainant and as cited by the Registrar of Contractors (Registrar). Evidence and testimony were presented, and based on the entire record, the following Findings of Fact, Conclusions of Law, and Recommended Order are made:

FINDINGS OF FACT

Complainant is the owner/occupant of a residence located at 8625 East Sharon Drive, Scottsdale, Arizona 85260.

Respondent holds Arizona Contractor’s License 288814. That license was issued on December 16, 2013 and suspended until compliance on June 6, 2016.

On June 6, 2016, Complainant filed a complaint with the Registrar alleging that Respondent had performed poor work when draining her pool in June 2016 and installing a new pool light, which left her pool plaster bubbling and cracking and her pool light nonfunctioning.

The Registrar assigned investigator Ted Stodder to investigate the complaint. Stodder testified that he arranged to perform an inspection on June 21, 2016, and notified Complainant and Respondent of the time and place of the inspection. Both Respondent and Complainant were present at that inspection. Stodder indicated that at the time of an inspection, he substantiated Complainant’s allegations regarding the pool light because she produced a receipt for the light and Respondent admitted the light needed to be repaired or replaced because it did not work. Stodder indicated he could not substantiate that Respondent caused the pool plaster problems because Respondent denied draining the pool and his investigation suggested that there were other potential causes of the cracking, such as a chemical imbalance in the pool water and the age of the plaster. Stodder noted that during the inspection Complainant could not tell him when the pool had last been replastered. He said that he was unable to see into the deep end of the pool because the water was cloudy and so could not confirm Complainant’s claim that the portion of the plaster in the deep end that was not completely drained of water did not crack.

On June 27, 2016, Stodder sent Respondent a Directive from the Registrar. The Directive stated in pertinent part as follows:

After investigation, the Registrar has substantiated that your work fails to meet minimum workmanship standards (see A.A.C. R4-9-108). Failure to comply with this Directive constitutes a violation of A.R.S. § 32-1154(A)(22) and may result in discipline of your license and a civil penalty pursuant to A.R.S. § 32-1154(4) of up to $500.00. Failure to comply with this Directive may also be treated as an aggravating factor should the Registrar pursue discipline of your license. You must provide the Registrar with satisfactory written proof of your compliance with this Directive prior to 5:00 p.m. on July 14, 2016.

You are hereby directed to remedy the following violations by appropriate means:

Pool Light is not working

Registrar has determined that any workmanship violations alleged in the complaint but not listed above are unsubstantiated and do not require corrective action. The Registrar of contractors does not get involved with money disputes.

After the time period for compliance with the Directive, Complainant informed Stodder that Respondent had not repaired the pool light. Stodder attempted to contact the Respondent without success. He therefore forwarded the matter to the Registrar’s legal department for review.

On July 26, 2016, the Registrar issued Respondent a Citation. That Citation contained two charges. Charge 1 referenced “[a] violation of Rule 4-9-108, titled ‘Minimum Construction Standards,’ in the Arizona Administrative Code, and thereby of A.R.S. § 32-1154(A)(3).” Charge 2 specified a violation of A.R.S. § 32-1154(A)(22), namely “[f]ailure 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 a written directive from the registrar.”

Hearing was convened at the Office of Administrative Hearings on October 11, 2016 at 10:00 a.m.

Respondent failed to appear at the time scheduled for hearing and did not request to appear telephonically. After the expiration of a 20 minute grace period, the Administrative Law Judge conducted the hearing in Respondent’s absence.

Complainant testified that she hired Respondent to service her pool in the fall of 2013. She recalled that prior to Respondent’s involvement with the pool, it was well-maintained and had now cracks or bubbles, having been replastered six or seven years before hearing. According to Complainant, Respondent failed to take care of the pool properly and turned its water green. By April 2014, Respondent’s worker Chris informed Complainant that the only way to solve the problem was to drain the pool.

Complainant objected to draining the pool because she understood that draining the pool during the summer months could cause the pool’s plaster to crack. Respondent’s owner assured her that draining the pool would not pose a problem and agreed to drain no more than a third of the pool water so the plaster would remain wet and not be exposed to the sun.

Complainant testified that Respondent’s worker nevertheless drained the entire pool except for a six foot portion in the deep end of the pool, where a puddle of water remained. Within a week or two of the draining, cracks and bubbles formed in the plaster. No bubbles or cracks appeared in the portion of the deep end where standing water was allowed to remain.

Complainant offered into evidence a Leslie Pools’ water analysis report from 2016 [Exhibit 2] which contains the following warning:

Also, in desert climates, a plaster pool can quickly crack; therefore draining during summer months is not recommended in desert climates when the air temperature exceeds 80 [degrees Fahrenheit].

Robert Michael McWilliams testified that he lives with Complainant and has been taking care of her pool for the last year. McWilliams said that although he has no background in pools, logic tells him that it is more likely than not that either the draining or a chemical imbalance caused by Respondent is the cause of the cracking in the pool. McWilliams noted that the cracks are horizontal rather than vertical suggesting that they were caused by the sun. He confirmed that the portion of the deep end of the pool where water covered the plaster did not peel.

Stodder testified that he believed an item could only go into a Directive if he was “100% certain” that Respondent caused the problem. After speaking with two other investigators, he believed that he could not know the cause of the cracking given the pool’s age, the dispute over who drained the pool and the possibility that chemical imbalance contributed to the cracking. Stodder understood that pool plaster between 8 and 10 years old was particularly susceptible to cracking. Stodder testified that “it’s likely “that the draining and chemical imbalance were the cause and that this would become even more likely if he had been able to visually confirm that the six foot portion of the pool’s deep end that was not exposed to the sun had not peeled.

CONCLUSIONS OF LAW

The Registrar 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.

Respondent’s suspended license does not deprive Complainant of her right to prosecute their complaint or prevent the Registrar from determining the merits of the complaint. See A.R.S. § 32-1154(D).

The Notice of Hearing that the Registrar mailed to Respondent at its address of record was reasonable and it is deemed to have received notice of the hearing.

To warrant such sanctions by the Registrar, Complainant must demonstrate by a preponderance of the evidence that Respondent violated the statutory section 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. 431, 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).

Undisputed credible testimony established Respondent provided deficient care for the pool, resulting in a chemical imbalance and Respondent’s recommendation that the pool be drained. Stodder, Complainant and McWilliams all provided evidence that it was likely that this chemical imbalance and subsequent pool draining caused the pool plaster in Complainant’s pool to bubble and crack. Therefore, Respondent is deemed responsible for crackling and peeling in the pool that occurred after Respondent drained it.

Undisputed credible evidence also established that Respondent installed a pool light that failed to function. Thus, Complainant established Respondent’s work in maintaining the pool and installing the pool light on the pool was not done in a professional and workmanlike manner in violation of A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108.

An A.R.S. § 32-1154(A)(22) violation is, warranted only for Respondent’s failure to fix the pool light it installed since the cracking plaster was not included in the Directive.

RECOMMENDED ORDER

Based on the foregoing, it is recommended that on the effective date of the Order, the Registrar shall suspend Respondent’s License No. License No: 288814 for a period of five (5) days.

It is further recommended that the Registrar require Respondent to pay the sum of $500.00 as a civil penalty pursuant to A.R.S. § 32-1154(E).

It is further recommended that if Respondent fails to pay the entire amount of the civil penalty on or before thirty days following the effective date of the Registrar’s final order, the Registrar revoke Respondent’s license, effective on such deadline date. 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.

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 18, 2016.

/s/ Suzanne Marwil

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors