ALJDEC decisions subject to certification as final

2017A-3581-CHC-ROC · Registrar of Contractors · 2017-12-07

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Roberto and Arlette Lenzi,

COMPLAINANT,

Pools By David LLC,

License No: 251195

RESPONDENT.

No. 2017A-3581-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: November 17, 2017, at 8:30 a.m.

APPEARANCES: Roberto Lenzi (“Mr. Lenzi” or “Complainants”); Arlette Lenzi (“Mrs. Lenzi” or “Complainants”); David Reiter (“Mr. Reiter” or “Respondent” as representative for Pools By David LLC); and Matt Gunstra (“Investigator Gunstra” for the Registrar of Contractors (“Registrar” or “ROC”)).

ADMINISTRATIVE LAW JUDGE: Linda Marie Brown

_____________________________________________________________________

Hearing was convened to determine whether Respondent violated state law as alleged by Complainant and as cited by the Registrar of Contractors. Based on the testimony and evidence at hearing, the following Findings of Fact, Conclusions of Law, and Recommended Order are made.

FINDINGS OF FACT

Roberto and Arlette Lenzi (“Complainants”) are the owner/occupants of a residence located at 6184 South Sorrell Court, Gilbert, Arizona 85298.

Respondent Pools by David LLC was issued its Arizona Contractor’s License No. B-5.251195-R General Swimming Pool Contractor on December 4, 2008. In review of the Registrar’s public website, administrative notice is taken that Respondent’s license is current and this is the first complaint filed against Respondent.

On December 2, 2016, Complainants contracted with Respondent to perform a new pool installation. The pool specifications contract stated the perimeter to be 102, 465 sq. ft. surface area, 836 sq. ft. interior area, and 3’6” x 5’ depth. Respondent noted it would obtain building permit and engineer plans. The pool installation contract also noted excavation, steel, electrical, plumbing and equipment, shotcrete, water tile, water features, and interior for a cost of $39,577.00. Other costs associated with this contract were for installation of decking, Ramada, wall, concrete and landscaping bringing the total contract price to $89,000.00.

Complainant stated in its Complaint that work commenced on or about December 27, 2016. Complainant made the following payments to Respondent as evidenced from the checks and invoices attached to its Complaint:

Date Check No. Amount

01/19/2017 [number redacted] $26,637.30

03/25/2017 3119 $ 2,667.25

04/24/2017 855 $ 855.00

04/17/2017 1050 $ 1,050.00

On or about July 14 2017, a complaint was filed with the Registrar by the Complainants alleging Respondent had abandoned the project and performed poor work. Complainants attached to its complaint several correspondences addressed to Respondent in their attempt to get it to complete the work. The first letter was dated May 15, 2017, and the second letter was dated June 19, 2017. Complainants also included a billing statement from Respondent demanding more monies. The add on invoice reflected the contract price of $89,000.00 minus amount paid of $80,911.90 with upgrades totaling $15,788.00 with an outstanding balance of $23,876.10.

While not exhaustive, several of the upgrade items listed included work to fire pit, artificial turf, trees and scrubs.

In its complaint, Complainants listed approximately 33 alleged issues against Respondent.

On August 1, 2017, Respondent filed a written response to the Complaint stating that they have been willing to address the issues with the Complainants on at least two (2) occasions, and that Complainants cancelled the appointments. Respondent also asserted that the time issues were due from weather issues, changes and additions. Respondent concludes in its letter it is “still willing to correct any reasonable issues, but I need assurances that I will receive final payment.”

Investigator Matt Gunstra was assigned to investigate the complaint. Investigator Gunstra credibly testified at the hearing that he met Complainants at the jobsite to conduct the inspection on August 8, 2017. Respondent’s attorney Mark Holmgren and subcontractor Denny Barnett of Blue Agave Landscaping were present.

During this jobsite inspection, Investigator Gunstra took photos with a state issued camera and made several observations:

Based upon Investigator Nelsen’s Jobsite Inspection Notes, he substantiated the following items:

Complaint Item 1: Not a license contractor to do Landscaping, only B-5 and he lie to us, he did not put in the contract.

Inspector’s Observations: R’s license is B-5 and allows pools. I observed that a Ramada structure, landscaping, hardscaping, and other out of scope work was completed under R’s contract. R’s subcontractor has a B-5 and a CR-21 which allow the landscaping portion of the project but not the Ramada. Both contractors performed out of scope work. R may not hire a CR 21 subcontractor. R is in violation.

Governing Rule: Code: A.R.S. § 32-1154(A)(16).

Complaint Item 2: He hired a second company to do the landscaping, which they can only do certain CR-21.

Inspector’s Observations: See comments under Complaint Item #1..

Governing Rule: A.R.S. § 32-1154(A)(16).

Complaint Item 5: Patio family room pillars broke

Inspector’s Observations: Item fixed by others prior to JSI.

Complaint Item 6: Tile crack and uneven in patio.

Investigator’s Observations: I observed various patio pavers that are cracked. I also observed several that have scratches across them that look like damage from something draging across the surface. Respondent states he notified C of the damage timely. Poor work substantiated.

Governing Rule: Workmanship Rule ROC standard for Interlocking Pavers #2

Complaint Item 7: Patio all around pool uneven, not safe.

Investigator’s Observations: C is refering to lippage between patio pavers. I walked the patio and only found one area of lippage over 1/8" which is the tolerance. I will direct R to repair any lippage over 1/8".

Governing Rule: Workmanship Rule ROC standard for Interlocking Pavers #8

Complaint Item 8: Back wall, he is not even license to do a retain wall, not finish, put the roof upside down, and more.

Investigator’s Observations: The stucco wall at the TV niche is not painted. The rear of the wall has paint that is not evenly applied at the edges and has areas of missing paint.

The stone wall cap has the unpolished side of the stone facing down and can be readily seen. It looks unfinished. It may be more appropriate to seal/polish this face. Poor work substantiated.

Governing Rule: Workmanship Rule R4-9-108

Complaint Item 9: Corner of pillar by pool, broken.

Investigator’s Observations: One stone base has a cap with chipped edges that has been filled with mortar. It is excessive and looks unsightly. Poor work.

Governing Rule: Workmanship Rule R4-9-108

Complaint Item 10: Grass coming throughout yard

Investigator’s Observations: In the rock areas of the landscaping I observed weeds coming through. ROC standards require these areas be protected from weed or grass infiltration and issues be corrected within 90 days. Must be corrected.

Governing Rule: Workmanship Rule ROC standard for Interlocking Pavers #5

Complaint Item 13: Driveway pavers, run the backhaul and broke gate.

Investigator’s Observations: I observed the gate is broken away from the post and someone attempted to repair it with plastic wall anchors. This is not an acceptable repair and it failed. R accepted responsibility for this item. Poor work substantiated.

Governing Rule: Workmanship Rule R4-9-108

Complaint Item 18: Front wall north side stucco is coming off

Investigator’s Observations: R had to open up and then rebuild this wall for access to the rear yard. The stucco is cracking and failing in spots and should be repaired. Substantiated.

Governing Rule: Workmanship Rule ROC standard for Stucco #1

Complaint Item 19: North side level is too low for drainage.

Investigator’s Observations: R installed a raised patio in the middle of the drainage swale at the side yard. This blocked the flow of water so he installed ground drains. I ran a hose into these drains and they filled with water and did not exit where the pipe terminates at the front yard. It appears either the fall of the pipe is insufficient or some other issue exists that allows malfunction. C showed me photos on his phone taken after a rain event in which this area is full of water. He says it does not dissipate after 48 hours. This seems likely. Poor work substantiated.

Governing Rule: Workmanship Rule ROC Standard for Site Work #4

Complaint Item 22: Never clean the street, was told by the HOA, when they were inspecting my home

Investigator’s Observations: Item corrected prior to JSI.

Complaint Item 23: Never clean the side gate, were trash containers, left full of trash.

Investigator’s Observations: There appears to be something splattered on the wall next to the gate. R took responsibility for that. The trash was cleaned up by C prior to JSI.

Governing Rule: Workmanship Rule R4-9-108

Complaint Item 24: Next to the side gate is unfinished, damage and not painted

Investigator’s Observations: Item fixed by others prior to JSI.

Complaint Item 26: He use my transformer for the lights, which was negligence, since it was heating up and not enough to cover watt.

Investigator’s Observations: Item fixed by others prior to JSI

Complaint Item 27: His crew use two of my hoses and don't even ask permission and broke them both

Investigator’s Observations: Fixed by C.

On August 15, 2017, Investigator Gunstra issued a warning letter to Respondent stating that it is suggested upon a review of the evidence that Respondent bid on, contracted for, or performed work that is out of scope of its license. Knowingly contracting beyond the scope of your license would be a violation of A.R.S. § 32-1154(A)(16). A violation of Section 32-1154(A)(16), if proved, would constitute grounds for the Registrar to suspend or revoke Respondent’s license.

A Directive was issued from the Registrar. The Directive stated in pertinent part, that Respondent is hereby directed to remedy the following violations by the appropriate means: Complaint Items 7, 8, 9, 10, 11, 13, 14, 18, 19, and 23 as set forth under the Jobsite Inspection.

The Directive stated that the above work had to be complete by 5:00 p.m. on August 15, 2017. Investigator Gunstra testified that upon a review, it was determined that there was decent proof of non-compliance and the Registrar determined to forego citing Respondent for A.R.S. § 32-1154(A)(22).

Respondent replied to the Directive on August 30, 2017, stating it attempted to contact Complainants and they replied they are going to exercise the next to last paragraph on page 2 of the Directive, specifically, “if any workmanship violations listed above are designated as outside the scope of your license, then you may remedy those violations only by paying a properly licensed contractor hired by Complainant to correct your deficient workmanship or by reaching a financial settlement with Complainant.”

On September 8, 2017, the Registrar issued Respondent a Citation. That Citation contained the following charge:

Charge 1: 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).

Respondent filed its Written Answer to Citation and Complaint on or about September 22, 2017. Respondent argues in its Response that prior to the Complaint made, it agreed to take care of all issues. Respondent further asserts that it rejected Complainant’s offer to make a financial settlement and stood ready to remedy.

a Notice of Hearing was issued providing notification that a HEARING upon the charge made in the Citation and Complaint will be held by the Office of Administrative Hearings. A copy was mailed to the Respondent’s address of record.

At hearing, Complainants argued that many items were left incomplete. Complainants further asserts these complained of issues are substantial given the value of their residence as a $1.2 million dollar residential property.

Respondent takes the position it offered to fix or hire someone else to do so and Complainants were not willing to do.

Mrs. Lenzi testified that her major concern is the water that is left standing in the yard. She also attempted to enter new drainage issues by the patio but was advised that no inspection was performed to substantiate this allegation and would require a new Complaint. She argued that Complaint Item 19 and 8 of the Directive are still a concern and requires remedying. Mrs. Lenzi also argued that Respondent is not license to fix these items since he does not hold a CR-21 license.

Complainants maintain their position that Respondent was performing outside of its scope and caused property damage to their residence. Complainants request that Respondent’s license be revoked.

Respondent stated he has 25 years of experience and has built over 200 pools. Respondent stated he is still willing to go in and do the work and willing to make a case settlement provided it’s reasonable but believes what is being asked by Complainants to be totally unreasonable.

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).

Undisputed credible testimony established Respondent performed substandard work on Complainant’s residence regarding the pool installation and was operating outside of the scope of its license. Thus, Complainant established Respondent’s work on the items specified in the Directive were not done 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).

Respondent’s argument that it was ready to perform are least persuasive given Complainants provided in its complaint copies of two letters to Respondent requesting it to remedy prior to filing its complaint with the Registrar. The first letter was dated May 15, 2017, and the second letter was dated June 19, 2017. Additionally, Respondent concluded in this letter of August 1, 2017, to the Registrar that it is “still willing to correct any reasonable issues, but I need assurances that I will receive final payment.”

A violation of A.R.S. § 32-1154(A)(3) for deficient workmanship issues is warranted based on the testimony and evidence presented at hearing.

This Tribunal also recommends discipline as evidenced that Respondent operating beyond the scope of its B-5 license. Under A.R.S. § 32-1154(A)(16). Respondent testified that he has 25 years’ experience and administrative notice was taken that he has been operating under his current license since 2008, therefore, Respondent is presumed to know its contracting limitation under its B-5 license. The Contract attached to Complainant’s initial Complaint weigh heavily against Respondent that it was performing beyond the scope of its license.

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. B-5.251195-R for a period of ten (10) days.

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, December 7, 2017.

/s/ Linda Marie Brown

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors