ALJDEC decisions subject to certification as final

2016A-3455-ROC · Registrar of Contractors · 2016-12-22

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

George John Herold,

COMPLAINANT,

v.

AZ Pool Resurfacing LLC,

License No: 292092

RESPONDENT.

No. 2016A-3455-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: December 2, 2016

APPEARANCES: Complainant George John Herold appeared on his own behalf. Fillipo Davi, Owner and Qualifying Party, appeared on behalf of Respondent AZ Pool Resurfacing LLC.

ADMINISTRATIVE LAW JUDGE: Tammy L. Eigenheer

_____________________________________________________________________

FINDINGS OF FACT

AZ Pool Resurfacing LLC (Respondent) is the holder of License No. 292092 issued by the Arizona Registrar of Contractors (Registrar).

On or about March 12, 2016, George John Herold (Complainant) signed a contract with Respondent to, among other things, chip out existing plaster/pebble down to the gunite, repair any exposed rebar up to five, and resurface the pool using two coats of mini-pebble for a total cost $5639.93. The project included a 10 year warranty.

On or about September 8, 2016, the Registrar received a Complaint against Respondent from Complainant alleging poor work with respect to the project the completion of the project, Complainant observed new cracks in the pebble finish.

The Registrar assigned the complaint to Investigator Mike Crow. After a jobsite inspection, Investigator Crow 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 October 7, 2016.

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

08/08/16 I found another crack. Again various emails phone calls AZ Pool dragged their feet. Finally 8/23/16 an email was sent to me by the owner Philip Davi stating he will not honor the warranty because of pool structure damage. I was shocked.

Approximately 40 inch crack on west side of pools inner surface.

Respondent shall correct by appropriate means.

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 contact Complainant or attempt to perform any corrective work. After the deadline in the directive expired, Investigator Crow was notified no corrective work had been performed.

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).

Investigator Crow testified that there were cracks in the kool decking around the pool that Complainant had repaired independently. Investigator Crow indicated that the Registrar’s standards provide cracks in the first 12 months are not acceptable. Investigator Crow stated that while Respondent credited the cracks to structural issues with the pool shell, the Registrar takes the position that when a contractor performs work to apply a new surface, the contractor accepts the subsurface; this is especially the case when the contractor knew of issues prior to work being performed.

Complainant acknowledged there was a crack in the pool prior to the project commencing. Complainant testified that he explained to Respondent in detail the issues with the cracks in the pool prior to entering into the contract. Complainant stated that if Respondent had mentioned the possibility of a structural issue with the pool prior to the contract, he would have investigated other options to ensure the problem would not reoccur. Complainant asserted that Respondent did not advise him that the crack may return or that a new crack in that location would not be covered by the warranty.

Mr. Davi stated that Respondent completed repairs around a pop-up valve, but that Respondent was not liable for the crack in question at the hearing. Mr. Davi testified that Respondent had no ability to prevent settling and damage to the shell of the pool. Mr. Davi asserted that the kool decking was attached to the pool shell and that the cracking in the kool decking was indicative of structural issues with the pool itself. Mr. Davi stated that Respondent warrantied the pebble finish in the pool, but could not warranty the structure of the pool. Mr. Davi submitted publications showing several factors can contribute to the cracking of the pool. Respondent did not obtain a written acknowledgement from Complainant that cracks Respondent deemed resulting from structural issues would not be covered under the contract.

Administrative notice is taken of Respondent’s prior License record on December 22, 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

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 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).

The evidence established that Respondent’s work was not in conformity with the Registrar’s standards. Respondent accepted the subsurface and did not obtain a specific waiver from Complainant that Respondent was not responsible for damage caused by the subsurface. 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).

The evidence established that Respondent did not attempt to compete the corrective work following the Directive being issued. Therefore, Complainant established 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).

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.

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, December 22, 2016.

/s/ Tammy L. Eigenheer

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors