ALJDEC decisions subject to certification as final

2016A-4384-CHC-ROC · Registrar of Contractors · 2017-03-22

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Byron Duncan Dombrowski,

COMPLAINANT,

v.

Pool Innovations Inc,

License No: 238508

RESPONDENT.

No. 2016A-4384-CHC-THE REGISTRAR

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: March 2, 2017

APPEARANCES: Complainant appeared on behalf of himself.

Steve R. Schelthoff appeared on behalf of Respondent Pool Innovations Inc.

ADMINISTRATIVE LAW JUDGE: Velva Moses-Thompson

_____________________________________________________________________

Hearing was convened to determine whether Respondent violated state law as alleged by Complainant and as cited by the Registrar of Contractors, (hereinafter “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

On or about April 13, 2015, Complainant Byron Duncan Dombrowski, (hereinafter “Mr. Dombrowski”), entered into a pool remodeling contract with Respondent Pool Innovation Inc.

Respondent’s qualifying party is Steven Scheltoff, (hereinafter “Mr. Scheltoff”).

On April 20, 2015, Respondent began work.

On May 8, 2015, Respondent completed the work.

In April and May of 2015, Mr. Dombrowksi paid Respondent for the work.

On or about November 3, 2016, Mr. Dombrowksi filed a complaint with the Registrar alleging that Respondent performed substandard work. Respondent holds Arizona Contractor’s License No. 238508.

On November 18, 2016, the Registrar Inspector Jack Grimm, (hereinafter “Mr. Grimm”), conducted an on-site inspection.

On November 30, 2016, Mr. Grimm issued a written Directive. The Directive stated, in relevant 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 the issuance of a Citation, discipline of your license, and a civil penalty as an aggravating factor should the Registrar pursue discipline of your license. You are hereby directed to remedy the following violations by the appropriate means:

Retaining walls around house are not per design, drawings are not Therapy jets were removed, and cemented over, then improperly fixed, creating water air leaks in north jet.

Correct north jet that is leaking in sitting area. Correct trim ring in the pool on same jet.

Water auto-leveler not working consistently, bow in the fill tube trapping in air, creating different pressure systems.

Verify fill tube from the fill location to the pool is clear for functionality.

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

You are advised that if your license is suspended for administrative reasons or is inactive, you may not perform any corrective work nor contract in any manner, which includes hiring other contractors to perform work, until the administrative suspension of your license(s) has been lifted or your license(s) has been reactivated.

Respondent was required to correct the work by 5:00 p.m. on December 16, 2016. The parties subsequently informed Mr. Grimm that all of the items were not completed.

On December 19, 2016, the Registrar issued a Citation against Respondent, charging possible violations of A.A.C. R4-9-108, and thereby A.R.S. § 32-1154(A)(3); and A.R.S. § 32-1154(22). A hearing was held on March 2, 2017.

11. At hearing, Mr. Scheltohoff testified that he takes Registrar citations very seriously. Mr. Schelthoff testified that after he completed the work, Mr. Dombrowski called him and stated that there was an air leak in one of his lines. Mr. Schelthoff testified that Mr. Dombrowski allowed him access to fix the repairs in 2015, but after a few visits Mr. Dombrowski locked his gate and refused access to his property. Mr. Schelthoff testified that Mr. Dombrowski requested a refund from his credit card company.

12. Mr. Schelthoff testified that it was his understanding that Mr. Dombrowski could not file a complaint because at the time that the complaint was filed, Mr. Dombrowski had not paid him anything because he received a refund from his credit card company.

13. Mr. Schelthoff stated that after the directive was issued, his lawyer in a civil suit against Complainant for breach of contract, advised him not to go to Complainant’s home. Mr. Schelthoff stated that his attorney told him to avoid a confrontation with Mr. Dombrowski in his backyard. Mr. Schelthoff testified that he did not attempt to make any repairs during the timeframe of the directive because he was concerned that he might have a physical altercation with Mr. Dombrowski. However, Mr. Schelthoff testified that Mr. Dombrowski never assaulted him or his worker. Mr. Schelthoff testified that he believed that there might be a physical altercation based upon Mr. Dombrowski’s aggressive behavior in locking his gate. Mr. Schelthoff also testified that his attorney was “not as familiar” with the Registrar process.

14. At hearing, Mr. Schelthoff testified that the consensus was that he should not go to Mr. Dombrowski’s home and make the repairs after the Directive was issued. When the Administrative Law Judge asked Mr. Schelthoff whether anyone from the Registrar told him that he should not go to Mr. Dombrowski’s home and make the repairs, Mr. Scheltoff was non-responsive.

15. Mr. Schelthoff testified that he was in communication with the Registrar several times. Mr. Schelthoff also testified that the Registrar informed him that normally when a person has not paid for services, the individual cannot file a complaint with the Registrar. Mr. Schelthoff testified that he inquired with the Registrar how to resolve the matter and was told that the matter had to proceed to a hearing. Mr. Schelthoff testified that he believed that he did not have to go to Mr. Dombrowki’s home and fix the project because the Registrar told him that a person cannot file a Registrar complaint if the homeowner has not paid the contractor. Mr. Schelthoff testified that the Registrar informed him that if he could prove at hearing that Mr. Dombrowski did not give him access then “it’s okay.”

16. However, Mr. Schelthoff presented no evidence to establish that Mr. Dombrowski refused access to his property during the timeframe of the Directive.

17. Mr. Dombrowksi testified that he always locked his gate when he was not at home. Mr. Dombrowksi testified that he tried to arrange a time for Respondent to fix the repairs. In or around July of 2015 Respondent’s workers came to Mr. Dombrowksi’s home and started marking repairs. However, Mr. Dombrowksi was unsatisfied with the work and demanded a full refund from Respondent.

18. Mr. Dombrowski testified that after the Directive was issued, he received no contact from Respondent.

19. After the directive was issued in 2016, Respondent made no attempt to call Mr. Dombrowski regarding correcting the work listed in the Directive. Respondent did not correct the work listed in the November 30, 3016 Directive.

20. At hearing, Respondent did not even contend that its work complied with the Registrar’s workmanship standards.

21. Administrative notice is taken of Respondent’s prior License record as

reflected on the Registrar’s public website on March 22, 2017. Such prior License record reflects that Respondent’s License No. 238508 was first issued on October 14, 2017 and renewed through October 31, 2007. The record also reflects that there is one open complaint pending against the license. The prior License record also reflects that there were no prior complaints field against Respondent’s license.

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.

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).

The weight of the evidence established that the work by Respondent was not in compliance with the Registrar’s workmanship standards. Therefore, Mr. Dombrowksi established 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).

The weight of the evidence established that Respondent failed to comply with the Directive without valid justification.

5. Therefore, Mr. Dombrowksi established that Respondent violated A.R.S. § 32-1154(A)(22).

RECOMMENDED ORDER

Based on the foregoing, it is recommended that on the effective date of the order in this matter, License No. 238508 of Pool Innovation Inc shall be suspended for a period of one day.

It is further recommended that the Registrar require Respondent to pay the sum of $100.00 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 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, March 22, 2017.

/s/ Velva Moses-Thompson

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors