ALJDEC decisions subject to certification as final

2017A-3538-CHC-ROC · Registrar of Contractors · 2018-01-03

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Anessa Hatcher and Ryan Hatcher,

COMPLAINANT,

Gilbert Poolman LLC ,

License No: 309759, 289980

RESPONDENT.

No. 2017A-3538-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: December 13, 2017 at 9:00 a.m.

APPEARANCES: Anessa Hatcher (“Ms. Hatcher” or “Complainant1”); Ryan Hatcher (“Mr. Hatcher” or “Complainant2”); D. Kim Lough (“Mr. Lough” attorney for Complaiants); Jake Boyer (“Respondent” representative for Gilbert Poolman LLC); and Beau Cruz (“Investigator Cruz” Investigator for the Registrar of Contractors “ROC” or “Registrar”).

ADMINISTRATIVE LAW JUDGE: Linda Marie Brown

_____________________________________________________________________

Having heard the evidence and testimony and considered the record in this matter, the undersigned Administrative Law Judge hereby makes the following Findings of Fact and Conclusions of Law.

FINDINGS OF FACT

Background and Procedure

According to the Registrar of Contractors public website, on or about November 7, 2016, the Registrar issued License No. CR36-309759-D for plastering and on March 5, 2014, License No. R-6.289980-R for Residential swimming pool service and repair to Respondent.

On or about July 12, 2017, Complainant filed a complaint with the Registrar alleging that Respondent had performed poor work on resurfacing the pool deck at Complainant’s house located at 171 East Frances Lane, Gilbert, Arizona 85295.

According to the complaint, the contract date was April 14, 2017. Work stopped on or about May 5, 2017. Respondent received $2,000.00 on a $3,000.00 contract price. The contract signed by complainants set forth the description of work as 1- VS pump $1,000.00; 1- auto water leveler $1,000.00; and 1 – deck repair and repainting $1,000.00.

Complainants listed the following issues in their complaint: (1) the contractor did not do a satisfactory job on re-surfacing our pool deck so we are not paying him in full; (2) the contractor subcontract this work to another company; and (3) the contractor is harassing our family and posting personal pictures to his blog; and (4) we will need to hire another contractor to repair.

On or about July 11, 2017, Complainants also filed a complaint with the Arizona Attorney General’s Consumer Protection Division who in turn forwarded the complaint to the Registrar of Contractors.

The Registrar assigned the complaint to its Investigator Beau Cruz for investigation. On August 16, 2017, Investigator Cruz performed a jobsite inspection. The Respondent was not present. Investigator Cruz noted that Complainants have an injunction against harassment against Respondent. Also noted was that Complainants stated they would not allow Respondent on the property if investigator provides a directive.

At the inspection, Investigator Cruz noted the following:

Complaint Item 1: the contractor did not do a satisfactory job on re-surfacing our pool deck so we are not paying him in full.

Investigator’s Observation: Allegation by the complainant is to explain as to why he has not paid complainant. Allegation included in these notes in the interest of administrate completeness.

Governing Rule: N/A: allegations included in these notes in the interest of administrative completeness.

Regarding Complaint Items 2, 3 and 4, Investigator Cruz noted that the Allegation does not implicate workmanship issues.

On July 17, 2017, an Addendum to the Complaint was filed listing three (3) additional complained of items:

Complaint Item 5: The texture of the resurfaced portion of the deck is very rough and spread very thin. We were told that the texture would be “very “similar to the existing pool deck surface.

Governing Rule: West (W) side of the pool deck that was redone by respondent, A.A.C. § R4-9-108 requires a contractor to perform all work in a professional manner and in conformity with professional industry standards. For work to be performed in accordance with professional industry standards, a contractor shall use such skill, prudence, and diligence in performing and completing tasks undertaken that the completed work meets the standards of a similarly licensed contractor possessing ordinary skill and capacity.

Complaint Item 6: There are splotches of plaster on the existing deck where they either spilled plaster or tried to patch existing plaster that they accidentally damaged.

Governing Rule: Workmanship Rule A.A.C. § R4-9-108 cited above

Complaint Item 7: The paint they used on the existing pool deck and new pool deck is peeling and chipping ( This was all painted at the same time in the middle of May 2017)

Governing Rule: Workmanship Rule A.A.C. § R4-9-108 cited above

On August 17, 2017, on behalf of the Registrar, Investigator Cruz issued a Directive requiring Respondent to remedy the following violations by appropriate means:

Complaint Item 5: The texture of the resurfaced portion of the deck is very rough and spread very thin. We were told that the texture would be “very “similar to the existing pool deck surface.

Visually discernable difference texture on two areas on the west (W) side of the pool deck that, was redone by respondent.

Complaint Item 6: There are splotches of plaster on the existing deck where they either spilled plaster or tried to patch existing plaster that they accidentally damaged

Evidence of patching efforts on pool deck area and section of walk area, chipping evident, rust spots caused by umbrellas as per complainant’s statement and, evidence of patching efforts on northeast section of pool deck by decorative boulder area.

Complaint Item 7: The paint they used on the existing pool deck and new pool deck is peeling and chipping (This was all painted at the same time in the middle of May 2017)

Peeling/chipping noted on northwest (N/W) section of redone pool deck to left of pool step area, peeling/chipping noted on west (W) section of redone pool deck, peeling/chipping noted on west (W) section of redone pool deck near edge of pool step area, peeling/chipping noted on west (W) section of redone pool deck near edge of elevated lounge deck area, peeling/chipping paint noted on surface of elevated lounge deck area that was repainted by the respondent and, chipping on surface on north (N) edge of pool deck, rust spots caused by umbrellas as per complainant’s statement.

The deadline for Respondent to comply with the Directive was August 31 2017.

Respondent’s office emailed Mr. Hatcher on August 22, 2017, stating it received the Directive and asking Complainants to contact their office to schedule a time to have the corrective work performed.

On August 29, 2017, Respondent emailed Investigator Cruz stating, “Gilbert Poolman LLC has attempted to reach out to the home owner (Ryan Hatcher) to perform the outlined work requested by the ROC. Unfortunately Ryan Hatcher has refused to respond to our requests and has refused to allow us back onto the property to perform the outlined work. This makes our obligations an impossibility to fulfill and at this time have to officially notify you that there is absolutely nothing else Gilbert Poolman LLC can do regarding this complaint. Thank you.”

Mrs. Hatcher in her testimony stated that they never responded to the email request to schedule the corrective work. She indicated that she feared the safety of her family. However, Respondent testified that he did not need to be the person to perform the corrective work and that he could have sent another laborer to perform the corrective work. Discussion also ensued during the hearing that the pool deck is located outside.

Investigator Cruz sent the complaint to the Registrar’s Legal Department. On August 30, 2017, the Registrar issued a Citation alleging cause to suspend or revoke Respondent’s contractor’s license for possible violations as Charge 1: A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108 minimum construction standards; Charge 2: A.R.S. § 32-1154(A)(12), namely, A.R.S. § 32-1158(B) Failure to include item 9 on its contract; and Charge 3: A.R.S. § 32-1154(A)(22) Failure to take appropriate corrective action.

On September 6, 2017, Respondent filed its written answer to the Citation, denying any statutory violation. In its response, Respondent alleges that they have done nothing wrong and that if Complainant refuses to let them back on their property, then there is absolutely no reason to further burden a contractor with unnecessary expenses.

On or about September 5, 2017, Respondent attempted to procure a Joint Request for Mediation. The Request was signed by the Respondent but not Complainant. No mediation was set in this matter.

The Registrar referred Complainant’s complaint to the Office of Administrative Hearings, an independent state agency, for an evidentiary hearing.

A prehearing jobsite inspection was conducted by Investigator Cruz on October 26, 2017. Araceli Torrez, office manager for Respondent was present. Investigator Cruz noted in his report that Ms. Torrez did inquire from Complainants what could the respondent do to resolve complaint and complainants did not reciprocate stating that mater will be decided at the hearing.

CONCLUSIONS OF LAW

This matter lies within the Registrar’s jurisdiction.

Complainant bears the burden of proof to establish cause to discipline Respondent’s license by a preponderance of the evidence. Respondent bears the burden to establish factors in mitigation of the penalty and affirmative defenses by the same evidentiary standard.

“A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.” A preponderance of the evidence is “[t]he 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.”

Complainant established that Respondent’s proposal, which became the parties’ contract, did not comply with A.R.S. § 32-1158(B), thereby providing cause to suspend or revoke Respondent’s contractor’s license under A.R.S. § 32-1154(A)(12). However, Investigator Crus credibly testified as to his involvement in the matter and stated that Charge 2 regarding item 9 of Respondent’s contract has been satisfactorily remedied. Therefore, this Tribunal finds Respondent to be in compliance with the statutory provisions.

Although Investigator Cruz required corrective action to the pool deck in its Directive to potentially establish cause to suspend or revoke Respondent’s contractor’s license under A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108, as set forth in the Directive. Respondent is provided a reasonable opportunity to take corrective action. While there may have been an injunction against a person that may have prevent Mr. Boyer to personally take corrective action, Respondent proved by sending Ms. Torres to the prehearing jobsite inspection that Respondent had available alternates to sending workman to perform the remedial corrections.

Because construction is not a perfect art, contractors generally must be afforded at least one opportunity to correct their deficient work before their licenses may be suspended or revoked. Respondent clearly established that Complainant refused to provide reasonable access to allow Respondent workers to comply with the Directive, thereby providing cause to close the complaint with the Registrar. This does not prevent Complainant from pursuing other options in a judicial forum that may be more appropriate to that which they may be seeking. In this instance, Complainant failed to meet its burden by a preponderance of the evidence that Respondent was not prevented from taking corrective action to repair or remedy any of the complained of items as set forth in the Registrar’s Directive.

/ / / / /

RECOMMENDED ORDER

Based on the foregoing, it is ordered that on the effective date of the final order in this matter, Complainants complaint in Case No. 2017A-3538-CHC-ROC against Respondent Gilbert Poolman LLC License Nos. CR36.309759-D and R-6.289980-Rshall be closed based on denial of access to perform repairs to comply with the Registrar’s Directive.

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 five days from the date of that certification.

Done this day, January 3, 2018.

/s/ Linda Marie Brown

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors