ALJDEC decisions subject to certification as final

2017A-2673-CHC-ROC · Registrar of Contractors · 2017-10-13

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Alan and Bethanne Doppelt,

COMPLAINANTS,

v.

Az Pool Resurfacing LLC,

License No: 292092,

RESPONDENT.

No. 2017A-2673-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: October 4, 2017

APPEARANCES: Alan and Bethanne Doppelt (Complainants) appeared on their own behalf. Az Pool Resurfacing LLC (Respondent) was represented by Charles Crafts, its Operations Manager and authorized representative.

ADMINISTRATIVE LAW JUDGE: Suzanne Marwil

_____________________________________________________________________

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

Complainants are the owners/occupants of a residence located at 509 South Bay Shore Boulevard, Gilbert, Arizona 85233.

Respondent holds Arizona Contractor’s License No: 292092. The license has been disciplined via finite suspensions on September 11 to 13, 2017 and April 14 to 16, 2017. The license was also suspended for nonrenewal August 1 to 8, 2016.

On May 26, 2017, Complainants filed a complaint with the Registrar alleging that Respondent had contracted to remodel their pool along with its equipment and decking. The Complaint alleged that Respondent’s work was substandard in a variety of ways, especially as concerned cracking on the deck.

The Registrar assigned investigator Steven Nelson to investigate the complaint. Nelson testified that he arranged to perform an inspection on June 15, 2017, and notified Complainants and Respondent of the time and place of the inspection. Only Complainants were present at that inspection. Nelson indicated that at the time of an inspection, he substantiated a number of Complainants’ allegations regarding the pool remodel including but not limited to sloppy painting with overspray and grout irregularities. Nelson also found that the pool remodel project lacked a building permit from the Town of Gilbert (Town) which he confirmed was required to install the main line to the pool.

At Respondent’s request, Nelson arranged for another jobsite inspection on June 22, 2017 so Respondent could be present. Nelson recalled that Respondent was very receptive and agreed that a number of items needed to be addressed.

On June 22, 2017, Nelson sent Respondent a Directive from the Registrar. The Directive stated in pertinent 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 discipline of your license and a civil penalty pursuant to A.R.S. § 32-1154(4) 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 July 12, 2017.

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

Complaint item #1- Overspray on wooden deck (including pavers and bbq cover).

Complaint item #4- Skimmer cover & automatic water fill cover have been painted over and are peeling; AZ Pools (Charlie) to provide unpainted “almond” color replacements. (Respondent agreed to replace).

Complaint item #6- Pool deck simulated tile grout has voids and irregularities.

Complaint item #7- Pool deck simulated tile and simulated grout has sloppy paint (brown in grey area and grey in brown areas).

Complaint item #8- Small cracks have started to happen around pool edges at control joints. (Respondent shall repair any cracks that are excessive or greater than 1/16” including area of spalling concrete and cracks on plactic control joint cover shown at Jobsite Inspection).

Complaint item #9- Pentair pump & filter were not installed according to the Pentair installation instructions (pad not level and equipment not mechanically fastened to pad). (Respondent shall also replace missing electrical cover, install ground as appropriate and remove or cover abandoned PVC)

Complaint item #10- There are 3 brown spots in the deep end that have recently appeared.

***ARS-32-1154A prohibits a contractor from departing from applicable building codes. The Respondent should work with the Complainant to acquire the appropriate permit or provide proof that the permit is not required. City (sic) of Gilbert stated that a building permit is required for the main line to the pool***

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

On July 12, 2017, Complainants telephoned Nelson to inform him that Respondent had been out only once and had failed to show up for an appointment scheduled for that day. Nelson advised Complainant that they should continue to give Respondent reasonable access to perform corrective work until expiration of the Directive.

After the time period for compliance with the Directive, on July 18, 2017, Nelson performed a compliance inspection. He found that no permit had been obtained and that items 1, 3, 4, 5, 6 and 7 were not completed. Nelson observed that while Respondent had made some attempted repairs, it had left grinding marks and in some respects caused more damage.

On July 18, 2017, the Registrar issued Respondent a Citation. That Citation contained three charges. Charge 1 referenced “[a] violation of A.R.S. § 32-1154(A)(2)” stemming from the lack of building permit on the project. Charge 2 alleged “[a] violation of Rule 4-9-108, titled ‘Minimum Construction Standards,’ in the Arizona Administrative Code, and thereby of A.R.S. § 32-1154(A)(3).” Charge 3 specified a violation of A.R.S. § 32-1154(A)(22), namely “[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.”

Hearing was convened at the Office of Administrative Hearings (OAH) on October 4, 2017.

Nelson testified consistently with the facts detailed above as did Complainants and Crafts. Crafts indicated that Respondent had spoken to the Town and determined that a permit was not necessary. He attempted to obtain evidence of this and have it emailed to him during the hearing but was unsuccessful. Crafts acknowledged that the failure to produce evidence on the issue of the permit lay with Respondent. He agreed that the work done on Respondent’s pool was inadequate, commenting that was “”not disputed at all”, but said that Respondent had attempted numerous times to fix the work and was still willing to do so even if it meant bringing in another company to fix the decking.

Crafts raised the issue of access for the first time at hearing and said that while Respondent had been able to send a crew in during the Directive period, it had not been able to bring in its decking crew. He admitted that Respondent did not seek an extension from the Registrar or notify the Registrar of any access issues. Crafts acknowledged that Respondent had already redone the deck twice but it continued to develop cracks.

Complainants said that they had grown wary of waiting for Respondent to correct the obvious issues with their pool and decking. They said that at this juncture they preferred to proceed with the administrative hearing process and not to have any further work done by Respondent.

On October 10, 2017, Crafts sent an email to the Registrar regarding the permit, which was forwarded on to the Office of Administrative Hearings. This email from Jeffrey Johnson, Plan Review Specialist for the Town stated in full as follows:

A permit will not be required for the work you described in your email [as] “installation of an underground dedicated schedule 40 PVC line from pool equipment to the pool that is in addition to the already existing pool returns” if it is being done by a licensed Contractor. A permit will be required if new electric or structural work to the pool was to be done

Office of Administrative Hearing staff sent the email to Complainants and Nelson and Complainants so they would know it had been filed.

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. § 32-115.

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 record was unclear whether a building permit was needed for the work Respondent did on the pool’s main line. Nelson suggested that a permit was needed but the email from the Town appears to state otherwise. On this record, Complainants have not met their burden of establishing a violation of A.R.S. § 32-1154(A)(2).

Undisputed credible testimony established Respondent performed substandard work remodeling Complainants’ pool. Thus, Complainant established the items specified in the Directive not done in a professional and workmanlike manner in violation of A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108.

An A.R.S. § 32-1154(A)(22) violation is, warranted for Respondent’s failure to complete all corrective work specified in the Directive. It is particularly disturbing that Respondent’s attempts at correction appeared to do more damage in the form of grinding marks in the grout line of the pool deck and damage to the pool deck.

The finding that there was insufficient evidence to support the need for a permit had no effect on the recommendation for a five (5) day suspension. Even if the Administrative Law judge had found that Respondent had violated A.R.S. § 32-1154(A)(2), she would have recommended a five day suspension, which is longer than Respondent’s previous finite suspensions, but takes into account Respondent’s efforts at corrective work.

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. License No: 292092 for a period of five (5) 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, October 13, 2017.

/s/ Suzanne Marwil

Administrative Law Judge