ALJDEC decisions subject to certification as final

2017A-2108-CHC-ROC · Registrar of Contractors · 2017-10-03

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

David Andrew Girle,

COMPLAINANT,

v.

Mountainside Pool and Spa LLC,

License No: 272622 and 296269,

RESPONDENT.

No. 2017A-2108-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: September 13, 2017

APPEARANCES: David Andrew Girle, Complainant; Michael Lee, Owner of Respondent; Investigator Russell Reed on behalf of Registrar of Contractor

ADMINISTRATIVE LAW JUDGE: Roger A. Geddes

_____________________________________________________________________

FINDINGS OF FACT

1. Mountainside Pool and Spa LLC (Respondent), is the holder of License Numbers 272622 and 296269 issued by the Registrar of Contractors (Registrar).

2. On or about April 20, 2017, David Andrew Girle (Complainant), filed a Complaint against Respondent with the Registrar alleging non-completion and poor work in connection with the demolition of an existing swimming pool and the installation of a lap pool at the residence at 2509 W. Loughlin Dr., Chandler, Arizona. According to the Complaint, the contract was entered into on October 22, 2016, at a contract price of $110,500.00. Work commenced on November 2, 2016

3. After an inspection performed by the Registrar on May 16, 2017, the Registrar identified various alleged deficiencies in the work performed by Respondent. Respondent returned to the project to attempt to correct the deficiencies.

4. After another inspection performed by the Registrar on June 30, 2017, the Registrar issued a Directive to Respondent, dated June 30, 2017, for the failure to meet minimum workmanship standards. (Arizona Administrative Code Rule 4-9-108).

5. Specifically, the Registrar noted the following deficiencies:

Complaint Item No. 1 - Obtain proper building permit from the appropriate jurisdiction and pass all required inspections.

Complaint Item No. 2 - Starter stands were not installed at the time of the job site inspection.

Complaint Item No. 3 - On filter is smaller than the other they should be the same size.

Complaint Item No. 4 - Cool deck/ border around pool has cracking in areas and some control joint are square, some areas of the cool deck do not slope appropriately.

6. The Registrar on July 3, 2017, then issued a Citation for Alleged Violation of A.R.S. § 32-1154(A)(3) (failure to meet minimum construction standards under Arizona Administrative Code Rule 4-9-108), and A.R.S. § 32-1154(A)(22) (failure to take corrective action) against Respondent. The Registrar referred the matter to the Office of Administrative Hearings, an independent state agency, for an evidentiary hearing.

7. The Registrar issued a Notice of Hearing setting a hearing for September 13, at 1:00 P.M.

8. A hearing was held on September 13, 2017, at 1:00 P.M. Complainant David Girle testified and presented the testimony of Elina Sihombing. Michael Lee, owner of Respondent, testified on behalf of Respondent. Russel Reed, the Registrar Investigator (Investigator), testified on behalf of the Registrar.

. 9. The Investigator testified as to his communications with Complainant and Respondent, his inspections of the job site, and the Directive issued by the Registrar as a result of his observations from his inspections. Specifically, he testified that he performed another inspection of the job site on September 12, 2017, and verified that some of the items listed in the June 30, 2017, Directive had been remedied, but that two items still remained. He testified that a building permit was required on the project but still had yet to be obtained from the appropriate jurisdiction. He further testified that there was some missing grout on the concrete and cool deck that had been replaced by Respondent. (See Registrar’s Ex. nos. 1-2).

10. Complainant testified as to the various issues that he experienced with the project over time but that the only remaining issue was the building permit that had yet to be obtained. Elina Sihombing on behalf of Complainant testified as the issues on the project over the past year.

11. Mike Lee on behalf of Respondent testified that all matters in the Directive had been remedied except the building permit. (See Respondent’s Ex. no. 1). He testified that the missing grout observed by the Investigator on September 12, 2017, had already been corrected.

12. As to the building permit, Mr. Lee testified that he had hired a consultant at the commencement of the project who had had erroneously advised him that a building permit was not necessary. After it was brought to his attention that a permit was required, Respondent applied for a permit on April 24, 2017. The permit was denied initially on or about May 24, 2017, in part because of an issue with the property line unrelated to the construction of the swimming pool. Mr. Lee testified the property line matter has since been resolved but there still remained issues concerning an irrigation and utility easement that would need to be resolved to the local jurisdiction’s satisfaction before the issuance of a permit for the swimming pool. According to Mr. Lee, the pool equipment Respondent installed was too close to the easements and it would be necessary to either move or have the easements abandoned. Mr. Lee further testified that a gazebo-type structure unrelated to the project had been built previously on the property for which the local required a building permit before issuing a permit for the swimming pool. Mr. Lee testified that he was moving forward in remedying the easement issue and that Complainant was assisting with the gazebo permit issue. Complainant acknowledged that he was moving forward in resolving the gazebo permit issue.

CONCLUSIONS OF LAW

1. 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.

2. The burden of proof at an administrative hearing falls to the party asserting a claim, right, or entitlement and the standard of proof on all issues in these matters is by preponderance of the evidence. See Arizona Administrative Code Rule 2-19-119.

3. 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).

4. A.R.S. § 32-1154(A) includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license:

3. Violation of any rule adopted by the registrar.

...

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....

5. Arizona Administrative Code Rule 4-9-108(A) provides that “A contractor shall perform all work in a professional manner.”

6. Complainant has presented sufficient evidence to establish cause to discipline Respondent’s contractor’s licenses under A.R.S. § 32-1154(A)(3) due to a violation of Arizona Administrative Code Rule 4-9-108. The evidence supports a finding that a building permit was required for the work performed by Respondent. Although Respondent has made a concerted effort to obtain a building permit, the fact remains that the new pool is still unpermitted and the project has commenced and proceeded without a permit.

7. Complainant has not established that Respondent’s licenses should be disciplined for a violation of A.R.S. § 32-1154(A)(22). Respondent has presented sufficient evidence to support a finding that Respondent has made and continues to make a good faith effort to obtain a building permit. Further, some of the issues that have prevented the issuance of a permit have been unrelated to the project. In fact, the evidence suggests that the extended period of time is has taken thus far in an attempt to obtain a permit for the pool is largely due to property issues that are unrelated to the project.

8. Respondent undertook the responsibility to obtain the building permit and assumed the risk that the local jurisdiction would require that other issues relating to the property be resolved before issuing a permit for the pool. However, due to Respondent’s diligence thus far in attempting to obtain a building permit, and because some conditions for the issuance of a permit are beyond Respondent’s control, this Tribunal believes Respondent should be afforded additional time to obtain the permit before imposing a disciplinary measure.

RECOMMENDED ORDER

Based on the foregoing, it is recommended that 45 days from the effective date of this Order, Mountainside Pool and Spa LLC’s License Numbers 272622 and 296269 shall be suspended for 2 days unless the Registrar receives and accepts written verification that Mountainside Pool and Spa LLC has obtained a building permit for the subject project.

It is further recommended that if and when the Registrar receives and accepts Respondent’s evidence that it has obtained a building permit for the subject project, the Registrar may close the Complaint in Case No. 2017A-2108-CHC-ROC.

In the event of certification of this Administrative Law Judge Decision by the Director of the Office of Administrative Hearings, the effective date of the Order will be five days from the date of the certification.

Done this day, October 3, 2017.

/s/ Roger Geddes_______

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors