ALJDEC decisions subject to certification as final

2017A-2673-RFA-ROC · Registrar of Contractors · 2018-06-21

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

ALAN DOPPELT,

Complainant,

v.

AZ POOL RESURFACING LLC ,

License No: 292092

Respondent.

No. 2017A-2673-RFA-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: June 6, 2018

APPEARANCES: Alan Doppelt, Complainant, Beth Ann Doppelt, Complainant’s

Spouse, Filippo Davi, Respondent, Keli Davi, Respondent’s spouse and employee, Jessica Ortiz. Residential Contractors Recovery Fund Examiner, Steve Nelson, Registrar of Contractors Investigator, Thomas Raine, Esq., Arizona Asst. Attorney General, attorney for the Residential Contractors Recovery Fund.

ADMINISTRATIVE LAW JUDGE: Randolph D. Wolfson _____________________________________________________________________

FINDINGS OF FACT

Complainant, Alan Doppelt and his spouse, are the owners and occupants of a residence located at 509 South Bay Shore Boulevard, Gilbert, Arizona 85233.

Respondent [hereinafter “AZ Pool”] holds Arizona Contractor's License No: 292092. Filippo Salvatore Davi is the Qualifying Party and a member of AZ Pool Resurfacing LLC.

On May 26, 2017, Complainant filed Complaint with the Arizona Registrar of Contractors alleging that AZ Pool 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 regarding cracking on the deck.

The Registrar of Contractors referred the Complaint to Inspector Steve Nelson to conduct an investigation of the Complaint. A Job Site Inspection [hereinafter “JSI”] was arranged at the Complainant’s residence and then performed on June 15. 2017.

Inspector Nelson indicated that at the time of his inspection, he substantiated a number of the Complainant’s allegations regarding the pool remodel including, but not limited to, sloppy painting with overspray and grout irregularities.

On June 22, 2017, a Directive from the Registrar was issued to AZ Pool with a Corrective Work Order [hereinafter :CWO”] which stated in pertinent part as follows:

After investigations 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.

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 and 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 plastic 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.

After the time period for compliance with the CWO, on July 18, 2017, Mr. Nelson performed a Compliance Inspection at the Complainant’s residence. Mr. Nelson found that no permit had been obtained and that items 1, 3, 4, 5, 6 and 7 of the CWO were not completed. Mr. Nelson observed that while AZ Pool had attempted some repairs, it had left grinding marks and in some respects caused more damage.

On July 18, 2017, the Registrar issued AZ Pool a Citation. The Citation alleged three charges.

Charge 1: violation of A.R.S. § 32-1154(A)(2)" stemming from the lack of building permit on the project.

Charge 2: 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 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.''

A Hearing was convened and conducted at the Office of Administrative Hearings on October 4, 2017. Alan and Bethanne Doppelt appeared at the hearing on their own behalf. AZ Pool was represented by Charles Crafts, its Operations Manager and authorized representative.

The ALJ determined that “[u]ndisputed credible testimony established” AZ Pool performed substandard work remodeling Complainants' pool. Complainant established the items specified in the CWO had not been done in a professional and workmanship like manner in violation of A.R.S. § 32-1154(A)(3), namely A.A.C Rule R4-9-108.

The ALJ found AZ Pool had violated A.R.S. § 32-1154(A)(22) for its failure to complete all corrective work specified in the CWO.

The Registrar accepted the Findings of Fact, Conclusions of Law and Recommended Order without modification. The Registrar suspended AZ Pool’s License No. License No: 292092 for a period of five days and assessed a civil penalty of $500.00 pursuant to A.R.S. § 32-1154(E). The Registrar’s Order in the case was not appealed and has become a Final Order.

On January 25, 2018, the Complainant filed his Arizona Residential Contractors Recovery Fund Claim. [Hereinafter, the “Fund Claim”]. Upon receipt of the Fund Claim, the matter was directed to Ms. Jessica Ortiz, a Residential Contractors Recovery Fund Examiner, for investigation. Ms. Ortiz testified that her investigation and determination on this Fund Claim was based upon her review of the Fund Claim form, review of the Registrar’s files of record [including the CWO in this case], the underlying Registrar of Contractors Complaint documents of record, a review of the bids submitted by the Complainant and consultations with Inspector Steve Nelson.

Ms. Ortiz determined that the Complainant to be the owner and occupant of a Class Three Residential property and was a person who was injured by the “acts, representations, transactions or conduct of a licensed residential contractor...” [to wit: AZ Pool] in violation of A.R.S. § 32-1154(A)(3), namely A.A.C Rule R4-9-108 for poor workmanship and A.R.S. §32-1154(A)(22) Respondent's failure to complete all corrective work specified in the CWO.

Ms. Ortiz testified that of the three bids presented to the Recovery Fund by the Complainant from licensed contractors to remedy the items listed in the June 22, 2018 CWO, the lowest bid was in the amount of $11.660.00 from E & E Pools. The bid from E & E Pools was reviewed by Ms. Ortiz in consultation with Inspector Nelson wherein Ms. Ortiz testified that the items listed in the E & E Pools bid were reasonable and conform to the items listed in the CWO requiring remediation.

Ms. Ortiz determined that the original contract price for services and materials to be provided by AZ Pool was $12.000.00. She also confirmed Complainant submitted proof of payment to AZ Pools under this contract was a total of $8,000.00 even. Ms. Ortiz testified that she subtracted the $8,000.00 payment to AZ Pools from the original contract price resulting in a total of $4,000.00 of an unpaid balance remaining to be paid under the original contract. Ms. Ortiz then deducted the $4,000.00 unpaid balance from E & E Pools bid [the lowest bidder] of $11,600.00 to arrive at her final determination that Complainant was entitled to a Fund Payout of $7,660.00.

On March 9, 2018, the Residential Contractors Recovery Fund issued its Notice of Claim for Administrative Payout stating that the Complainant should be awarded $7,660.00 on the Clam.

On March 26, 2018, Respondent AZ Pool filed its Notice of Appeal.

Accordingly, a hearing before the Office of Administrative Appeals was set and thereupon conducted on June 6, 2018.

The Claimant presented no evidence contesting the Recovery Fund’s award.

AZ Pool, through the testimony of Filippo Davi, contested the findings of Ms. Ortiz in that included in the E & E Pools’ bid was payment for the costs of equipment and labor to replace the pool’s pump and filter. He explained that the pump and filter were brand new equipment that needed no replacement and the value of the pump, filter and labor to install them should be deducted from the Fund Claim awarded.

Inspector Steve Nelson testified regarding his involvement with this case from the point of his receipt of the original underlying Complaint, through the initial Administrative Hearing process, and up and to the consultations conducted with Ms. Ortiz regarding her investigation for this Claim. Mr. Nelson testified that each of the items contained in the E & E Pools’ bid were cross-referenced by Ms. Ortiz and himself to the items listed in the CWO. He testified that all of the items listed in the E & E bid were a match to the work required by the CWO. Mr. Nelson also testified that he had contacted Pentair, the manufacturer of the pump and filter system in this case. He said he explained to them the state of the equipment that he observed- i.e., the equipment’s pad was not level and the equipment was not mechanically fastened to the pad per Pentair’s installation instructions. He stated that the Pentar representative advised that such installation voids the warranty on their product. Mr. Nelson stated that the pump and filter were now useless without a warranty and needed to be replaced.

CONCLUSIONS OF LAW

Alan Doppelt bears the burden of proof; the standard of proof is that of a preponderance of the evidence. Ariz. Admin. Code § R2-19-119; Notice of Claim for Administrative Payout.

A preponderance of the evidence is:

The greater weight of the evidence, not necessarily established by the greater number of witnesses testifying to a fact but by evidence that has the most convincing force; superior evidentiary weight that, though not sufficient to free the mind wholly from all reasonable doubt, is still sufficient to incline a fair and impartial mind to one side of the issue rather than the other.

Black’s Law Dictionary 1373 (10th ed. 2014).

The preponderance of the evidence supports the Registrar of Contractors determination to award Alan Doppelt $7,660.00 in the form of a payment issued by the Recovery Fund.

RECOMMENDED ORDER

IT IS RECOMMENDED that the Registrar of Contractors make to Alan Doppelt a payment of $7,600.00 from the Residential Contractors’ Recovery Fund.

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, June 21, 2018.

/s/ Randolph D. Wolfson Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors