PDF copy: ALJDEC decisions subject to certification as final

2016A-2291-ROC · Registrar of Contractors · 2017-03-21

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Evan John Zang, No. 2016A-2291-ROC COMPLAINANT, v. ADMINISTRATIVE LAW JUDGE AZ Pool Resurfacing LLC, DECISION License No: 292092 RESPONDENT.

HEARING: November 10, 2016 APPEARANCES: Complainant Evan Zang appeared on his own behalf. Filippo S. Davi, Owner and Qualifying Party, appeared on behalf of Respondent AZ Pool Resurfacing LLC. ADMINISTRATIVE LAW JUDGE: Tammy L. Eigenheer _____________________________________________________________________ FINDINGS OF FACT 1. AZ Pool Resurfacing LLC (Respondent) is the holder of License No. 292092 issued by the Arizona Registrar of Contractors (Registrar). 2. On or about May 9, 2016, Evan Zang (Complainant) signed a contract with Respondent for, among other things, replaster his swimming pool at his home. 3. On or about June 29, 2016, the Registrar received a Complaint against Respondent from Complainant alleging poor work with respect to the project. 4. The Registrar assigned the complaint to Investigator Steve Klein. After a jobsite inspection, Investigator Klein issued a written directive to Respondent that provided 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 the issuance of a Citation, discipline of your license, and a civil penalty pursuant to A.R.S. § 32-1154(E) 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 8-25-16.

Office of Administrative Hearings 1400 West Washington, Suite 101 Phoenix, Arizona 85007 (602) 542-9826 You are hereby directed to remedy the following violations by the appropriate means: Complaint Item 1: AZ Pool Resurfacing provided Customer with amateur, unprofessional, workmanship (possibly illegal & unlicensed). Inspector addressing issues by sending appropriate letters. Complaint Item 2: AZ Pool Resurfacing caused and failed to correct multiple plaster blemishes/defects in Pool and Spa. Respondent agreed to correct the issues.

Complaint Item 3: AZ Pool Resurfacing broke existing Pool & Spa tiles and did NOT replace with matching tiles. Verified a broken tile and Respondent agreed to replace the tile. Complaint Item 6: AZ Pool Resurfacing failed to correct crooked steps in Pool & Spa. Verified uneven/ wavy stair risers and Respondent agreed to correct. Complaint Item 8: AZ Pool Resurfacing failed to correct and smooth dangerously rough plaster areas in Pool & Spa. Respondent agreed to correct

Complaint Item 10: AZ Pool Resurfacing would not provide customer estimated date of completion of all work to be performed. Inspector addressing issues by sending appropriate letters. Complaint Item 16: AZ Pool Resurfacing Contract did NOT contain the registrar’s telephone number and website address. Inspector addressing issues by sending appropriate letters. Complaint Item 17: AZ Pool Resurfacing Contract did NOT state complaints must be made within the applicable time period as set forth. Inspector addressing issues by sending appropriate letters.

The Registrar has determined that any workmanship violations alleged in the complaint but not listed above are unsubstantiated and do not require corrective action. 5. Following the issuance of the written directive, Respondent attempted to contact Complainant regarding the corrective work outlined in the written directive. Respondent indicated that it was not possible to perform the corrective work until the

temperature was below 90 degrees for a few days in a row. After the deadline in the directive expired, Investigator Klein was notified no corrective work had been performed. 6. The Registrar issued a Citation against Respondent, charging possible violations of A.A.C. R4-9-108, and thereby of A.R.S. § 32-1154(A)(3); and A.R.S. § 32- 1154(A)(22). 7. Investigator Klein indicated that he knew some pool contractors would not perform work on pools when the temperature was too high, but stated he could not hold the complaint open until the temperature dropped. 8. Complainant testified that the plaster finish was not smooth and was not usable. Complainant also pointed out that the stairs were uneven and were no longer parallel. Complainant acknowledged that Respondent offered to polish the plaster finish, but Complainant did not agree that Respondent’s proposed repair were appropriate and would prevent further problems. 9. Mr. Davi testified that after the Directive was issued, he attempted to contact Complainant about scheduling the corrective work for a time when the temperature was below 90 degrees. Mr. Davi indicated draining the swimming pool and leaving it empty while completing the repairs when the temperature was over 90 degrees would result in additional damage to the plaster. Mr. Davi also stated that polishing the plaster was considered an upgrade by industry professionals. 10. Administrative notice is taken of Respondent’s prior License record on November 30, 2016. Such prior License record reflects that Respondent’s License No. 292092 was first issued on July 25, 2014, and is current. Such prior License record also reflects that there were two open complaints and one resolved/settled/withdrawn complaint against Respondent’s license. CONCLUSIONS OF LAW 1. This matter lies within the Registrar’s jurisdiction. See A.R.S. § 32-1101 et seq. 2. Complainant bears the burden o*f 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). 3. The evidence established that Respondent’s work was not in conformity with the Registrar’s standards. Therefore, Complainant established that Respondent did not complete the project in a workmanship manner in violation of A.A.C. R4-9-108, and thereby of A.R.S. § 32-1154(A)(3).1 4. The evidence established that Respondent did not attempt to compete the corrective work following the Directive being issued because of the high temperature. The high temperature constitutes valid justification for Respondent not performing the corrective work by the deadline in the written directive. Therefore, Complainant failed to establish that Respondent failed to take appropriate corrective action following a written directive from the Registrar in violation of A.R.S. § 32-1154(A)(22).2 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. 292092 for a period of three days. 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, November 30, 2016.

/s/ Tammy L. Eigenheer Administrative Law Judge

Transmitted electronically to: Jeffrey Fleetham, Director Registrar of Contractors 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.” 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.R.S. § 32-1154(A)(22) includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, “[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.” Emphasis added.