ALJDEC decisions subject to certification as final

2016A-337-ROC · Registrar of Contractors · 2016-07-11

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: July 1, 2016 APPEARANCES: Mary Ernst, Complainant. Respondent Steve Martin, Officer and qualifying party, Martin Industries, LLC ADMINISTRATIVE LAW JUDGE: Randolph D. Wolfson _____________________________________________________________________ FINDINGS OF FACT

Respondent, Martin Industries, LLC, DBA: Arrow Pool & Spa (Respondent) is the holder of License Number 273091 issued by the Arizona Registrar of Contractors (Registrar). On or about February 23, 2015, Complainant entered into an oral contract with Respondent to install a “Pentar Inteltouch (easy touch)” remote control system and salt cell for the Complainant’s existing swimming pool at Complainant’s residence. On January 28, 2016, the Registrar received a Complaint against Respondent from Complainant alleging Respondent performed poor work and that a money dispute then existed between the parties. The Registrar assigned the Complaint to ROC Investigator Beau Cruz. After a jobsite inspection March 2, 2016, Investigator Cruz issued a written directive to Respondent on or about March 8, 2016, that provided as follows: Complaint Item 4: Company did not install GFCI with new equipment. Ensure that proper GFCI protection is installed and, comply per all governing standards.

Complaint Item 5: Company left wires hanging all over pool equipment and plumbing. Ensure that that all wiring running to and from power center, is protected from physical damages and, comply per all governing standards.

Complaint Item 6: Wires run into new box were not protected with conduit or fittings. Ensure that that all wiring and conduit is connected properly to power center and, ensure that all wiring is protected from physical damage and, comply per all governing standards.

The Registrar has determined that any workmanship violations alleged in the complaint but not listed above are unsubstantiated and do not require corrective action.

Following the issuance of the written directive, Respondent did not correct the items specified in Mr. Cruz’s Corrective Work Order. On April 22, 2016, The Registrar issued a Citation against Respondent, charging possible violations of A.R.S. § 32-1154(A)(2),[1] of Rule 4-9-108, titled “Minimum Construction Standards,” in the Arizona Administrative Code, and thereby of A.R.S. § 32-1154(A)(22),[2] After proper Notice of Hearing to the parties on May 16t, 2016, a hearing was held on July 1, 2016 Investigator Cruz was sworn and testified that at his compliance inspection that A. He learned that complainant has had another contractor (Leslie Pools) work in the subject panel and ran wire from Complainant’s heat pump and pump motor to panel. B. As to the Respondent having billed higher that what had been bid, both parties stated to Mr. Cruz that the contract was verbal. Mr. Cruz stated both disagreed as to what was discussed or what transpired. In the absence of written contract, the investigator was unable to offer an opinion regarding the billing dispute. C. As to Complainant’s assertion that Respondent installed “low- grade equipment,” Mr. Cruz stated that Complainant requested that Respondent install a “Pentair IntelliTouch” Power Center Panel so that she could control temperature of the water via wireless when she is out of town. Instead, Complainant said the contractor installed a “Pentair EasyTouch” (P-3). Mr. Cruz indicated that the Complainant failed to provide definitive documentation to show that Respondent did not install what the complainant requested or that the equipment that was installed was lower “grade equipment”. D. Regarding Complainant’s concern that she had requested her I heat pump to be connected to the new system panel, but that it was not connected, Mr. Cruz observed that Respondent stated that system (the panel center) was wired to the existing heat pump and the heat pump was up and running when job was completed. Mr. Cruz observed the heat pump was not connected as per complainant’s request due to connectivity issues. Mr. Cruz noted that the Complainant has had other contractor (Leslie’s Pool) work on the system and they ran wire from heat pump and connected to power center as a temporary fix. E. Mr. Cruz observed that the Respondent failed to install GFCI protection in accordance with IRC Chapter, 42 Swimming Pools, section E4203.1.3 GFCI protection.[3] . F. Mr. Cruz noted loose wiring running on and over equipment and not protected from physical damage.[4] Complainant stated that other contractor, Leslie Pools, corrected the issue prior to jobsite inspection. Mr. Cruz was unable to verify or offer an opinion as to which contractor, the Respondent or Leslie Pools performed the work observed. G. Mr. Cruz noted that wires were running into the new panel that were not protected with conduit or fittings. Mr. Cruz observed that the wiring in panel center was therefore not performed in a professional and workmanlike manner. There were no bushings installed in the knockout holes of panel center to protect the wiring passing from physical damage.[5] Complainant stated that other contractor Leslie Pools corrected the issue prior to jobsite inspection. Mr. Cruz was unable to verify or offer an opinion as to which contractor, the Respondent or Leslie Pools performed the work observed. The Complainant and Homeowner, Mary Ernst, was sworn and testified. Exhibits 1 [an e-mail], 2 [an e-mail] , 3,[copy of Angie's List posting from Complainant], and 4 [Response from WalMart regarding Complainant’s objection to charge from Respondent]] were offered by the Complainant without objection, were admitted and considered. .Exhibit 5 [e-mail describing chronology of events] was offered. Respondent’s objection as to relevance and redundancy are sustained. Exhibits 7 [e-mail re: Pentar], 8 [3 photographs of worksite] and 9 [billing statement] offered by the Complainant without objection, were admitted and considered. The Complainant testified that a lengthy – and her opinion over-long – period of time elapsed in order to get this project under her control and finished to her satisfaction. She admits that all of the issues she raised concerning the Respondent’s orally contracted work has been up-graded or repaired to her satisfaction except for wires that remain above ground and exposed. The Complainant admits that contractors have been on the Respondent’s work- site since the Respondent’s work and have performed their own work on this project. She agrees that another contractor was on site from Pentar, the manufacturer of her pool’s remote control system and admits that this additional contractor replaced the system installed by the Respondent. She agrees that the new system now works just as she expected. She also agreed that Leslie Pools performed work on her system after the Respondent and that they left the wiring exposed which she complains about as being sub- standard workmanship. The Complainant contends that a thousand dollars is still being demanded by the Respondent on this job. She maintains that the outstanding bill is for repair work done by the Respondent to remedy his poor workmanship, and, that she should not have to pay for his errors. The Respondent was sworn and testified. He offered no exhibits into evidence. Mr. Steve Martin is an officer and the qualifying party. He testified that the Complainant entered into an oral agreement for his company to install a “Pentar Inteltouch (easy touch)” remote control system and a salt cell for the Complainant’s existing swimming pool at Complainant’s residence. Because the system he installed would not accommodate the requirement of the Complainant that her heat pump and other systems be turned on and off remotely from her cell phone and computer, he contacted his manufacturer, Pentar, to remedy the issue. Pentar sent its manufacturer representative to the site and exchanged out the unit installed by the Respondent to a model that meets or exceeds the desires of the Complainant. Mr. Martin admits that he did not install GFCI protection in accordance with IRC Chapter, 42 Swimming Pools, section E4203.1.3 GFCI protection on this job. But, he stated that when the job was being performed in 2015, the IRC had not yet required GFCI be installed. The Citation was issued in 2016 and it was not until the 2016 IRC regulations that the GFCI requirement was added. Mr. Martin testified that the site was now up to code with GFCI protection and that all other items listed in the ROC Citation have been repaired and resolved except for the Complainant’s assertion regarding a thousand dollars still due and owing for Respondent’s work and materials on this job. On the record Mr. Martin offered to stipulate that he would reduce the Respondent’s balance owing to zero upon the condition that the Respondent withdraw her previously posted comments she made on Angie’s List. On the record, the Complainant agreed to stipulate withdrawing her comments about the Respondent on Angie’s List upon the condition that Respondent zero out her balance with the Respondent. Administrative notice is taken of Respondent’s prior License record as reflected on the Registrar’s public website on July 9, 2016. Such prior License record show no negative action reflected on the Respondent’s license record.

CONCLUSIONS OF LAW

This matter lies within the Registrar’s jurisdiction. See A.R.S. § 32-1101 et seq. Complainant bears the burden of proof to establish Respondent’s statutory violation 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) As to the issue of poor workmanship, it is established that the Respondent did not provide GFCI protection as required by the Complainant DID ESTABLISH that Respondent did not perform the work in a professional and workmanlike manner in violation of A.A.C. R4-9-108, and thereby of A.R.S. § 32-1154(A)(3).[6] All other workmanship issues raised by the Complainant are factually clouded because it can not be determined by a preponderance of evidence that the matters complained of were the result of Respondent’s work. Rather, the workmanship claims point to the contractor or contractors which worked on the Complainant’s site at a time after the Respondent worked on the site. Therefore, as to all workmanship issues raised other than as found in the preceding paragraph 3 of the Conclusions of Law herein, the Complainant DID NOT establish that the Respondent’s work was unprofessional or not in a workman like manner. The system and products installed pursuant to the oral contract of the parties are, as of the date of hearing in this matter, fully operational, in good condition and meet or exceed the duties of the Respondent under the oral agreement. By stipulation of the parties hereto, the Complainant stipulates to withdraw her posting with Angie’s List in return for the Respondent zeroing her account balance with the Respondent. The stipulation was accepted and adopted by the Administrative Law Judge at hearing in this matter. Therefore, the issue of disputed charges has been resolved.

RECOMMENDED ORDER

Based on the foregoing, it is recommended that starting on the effective date of the Order, the Respondent’s License Number 273091 shall be suspended unless, before the effective date of the Order, the Respondent provides proof by evidence satisfactory to the Registrar of Contractors that proper GFCI protection is installed in compliance with all governing standards. Further it is recommended that pursuant to the stipulations of the parties that within ten (10) days of the effective date of the Order, the Complainant shall withdraw her posting with Angie’s List and the Respondent shall reduce the Complainant’s balance due to the Respondent to zero. 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 the 10th day of July 2016..

/s/ Randolph D. Wolfson Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director Registrar of Contractors

----------------------- [1]A.R.S. § 32-1154(A)(2). “Departure from or disregard of plans or specifications or any building codes of the state or any political subdivision of the state in any material respect that is prejudicial to another without consent of the owner or the owner's 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 and code.” [2] A.R.S. § 32-1154(A)(22) “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 a written directive from the registrar.” [3] All 15- and 20-ampere, single phase, 125-volt receptacles located within 20 feet (6096 mm) of the inside walls of pools and outdoor spas and hot tubs shall be protected by a ground-fault circuit-interrupter. Outlets supplying pool pump motors from branch circuits with short-circuit and ground-fault protection rated 15 or 20 amperes, 125 volts through 240 volts, single phase, whether by receptacle or direct connection, shall be provided with ground-fault circuit-interrupter protection for personnel. Moreover, Workmanship Rule: A.A.C. § R4-9-108 requires a contractor to perform all work in a professional manner and in conformity with professional industry standards. For work to be performed in accordance with professional industry standards, a contractor shall use such skill, prudence, and diligence in performing and completing tasks undertaken that the completed work meets the standards of a similarly licensed contractor possessing ordinary skill and capacity. [4]. “IRC states in Chapter 38 WIRING METHODS, SECTION E3801 GENERAL REQUIREMENTS - E3801.I SCOPE. “This chapter covers the wiring methods for services, feeders and branch circuits for electrical power and distribution. - E3802.3.2 Protection from physical damage. “Where subject to physical damage, cables shall be protected by rigid metal conduit, intermediate metal conduit, electrical metallic tubing, Schedule 80PVC rigid nonmetallic conduit, or other approved means”. [5] Refer to current IRC and NEC or what has been adopted the governing municipality. “IRC states in Chapter 38 WIRING METHODS – SECTION E3801. GENERAL REQUIREMENTS - E3801.I SCOPE. “This chapter covers the wiring methods for services, feeders and branch circuits for electrical power and distribution. E3801.2 Allowable wiring methods “The allowable wiring methods for electrical installations shall be those listed in Table 3801.2. Single conductors shall be used only where part of one of the recognized wiring methods listed in Table 3801.2. As used in this code, abbreviations of the wiring methods types shall be as indicated in Table 3801.2. - E3802.1 Installation and Support Requirements – “Wiring methods shall be installed and supported in accordance with Table E3802.1. [6] 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.”

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