ALJDEC decisions subject to certification as final
2017A-4985-CHC-ROC · Registrar of Contractors · 2018-03-15
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
Marlene Vairo,
COMPLAINANT,
v.
Imperial Concepts Inc dba,
Imperial Pools & Landscape ,
License No: 309450, 223368
RESPONDENT.
No. 2017A-4985-CHC-ROC
ADMINISTRATIVE LAW JUDGE DECISION
FINDINGS OF FACT
Background and Procedure
1. Imperial Concepts, Inc. (Respondent), is the holder of License Numbers 309450 and 223368 issued by the Registrar of Contractors (Registrar).
2. On or about October 2, 2017, Marlene Vairo (Complainant) filed a Complaint against Respondent with the Registrar alleging poor work in connection with the installation of a swimming pool, hardscaping, and landscaping by Respondent at Complainant’s residence in Phoenix, Arizona.
3. Upon completion of an inspection performed by the Registrar on November 3, 2017, the Registrar issued a Directive, dated November 7, 2017, requiring Respondent to correct alleged deficiencies in Respondent’s work by November 24, 2017, as follows
Complaint Item 2: Original contract calls for installation of easy touch “4” and remote, 1 additional actuator to be installed (not done)
• This item appears to be a contract interpretation dispute.
• Job should be completed per contract
Complaint Item 4: Lid for the built in grill hit back splash, installation instructions clearly states 7” must be left cut out.
• Respondent shall complete project per original contract agreement and manufacturer’s installation instructions.
Complaint Item 7: All columns (6) were installed improperly voiding all warranties.
• Respondent shall complete project per contract agreement, and manufacturer’s installation instructions.
Complaint Item 8: Columns for Ramada were improperly and incompletely installed.
• Respondent shall complete project per contract agreement, and manufacturer’s installation instructions.
Complaint Item 9: Capitals cannot be attached due to roof line.
• Respondent shall complete project per contract agreement, and manufacturer’s installation instructions.
Complaint Item 10: Raised patio and raised bond beam pavers are not level at all.
• Verified lippage in several areas. There should be no more than 1/8th inch difference in height between adjacent pavers.
Complaint Item 17: Handicap rail is not installed properly - loose
• Verified pool rail is loose.
Complaint Item 19: Deck jets warranty voided they were not installed properly, no drains installed.
• At the time of inspection the drains were holding water.
• Respondent shall complete project per contract agreement, and manufacturer’s installation instructions.
Complaint Item 23: Contractor was not allowed to finish work because he was on phone with column distributors told him to fix cracks with bondo and he showed up with silicone.
• Appears that an adhesive was used like liquid nails.
• Respondent shall complete project per manufacturer’s installation instructions.
Complaint Item 24: Columns on raised bond beam were filled with cement.
• Unable to verify cement due to access, however there are large cracks at the seams.
• Respondent shall complete project per manufacturer’s installation instructions.
. 4. On December 14, 2017, the Registrar performed another inspection and found that Respondent failed to complete all corrective work as specified. The Registrar then issued a Citation to Respondent, dated December 15, 2017, for the alleged violation of the following:
a. A.R.S. § 32-1154(A)(3) (violation of Arizona Administrative Code Rule 4-9-108 for failure to meet minimum workmanship standards);
b. A.R.S. § 32-1154(A)(22) (failure to perform corrective action without valid justification).
5. The Registrar referred the matter to the Office of Administrative Hearings, an independent state agency, for an evidentiary hearing. The Registrar issued a Notice of Hearing setting a hearing for February 23, 2018, at 8:30 A.M. At the hearing, Complainant testified on her own behalf; Frank Vairo and Stephen Vairo testified on behalf of Complainant; Robert Jensen, President of Respondent, testified on behalf of Respondent. Steve Klein, the Registrar Investigator (Investigator), testified on behalf of the Registrar. The Tribunal received and admitted Complainant’s exhibit numbers 1 - 4.
6. The Investigator on behalf of the Registrar 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 the remaining items in the Directive had not been corrected.
7. Complainant Marlene Vairo confirmed that none of the Directive items had been corrected. She also testified that the project failed a building inspection because outlets were not installed correctly or waterproofed. She further testified that new deficiencies have been discovered since the filing of the Complaint including the pool leaking and the failure on the part of Respondent to waterproof the fountain.
8. As it relates to the Directive, Frank Vairo, Complainant’s husband, testified on behalf of Complainant that one actuator for the water features was not installed by Respondent. He stated that he had wanted the fountain, sheer descent, and deck jets to all be individually controlled by remote such that each could operate independently. However, he added that without the additional actuator, the fountain and sheer descent can only operate together unless manually adjusted. He also confirmed that the pool was leaking and that there was no secure seal installed on the fountain. He further testified that with respect to Directive item number 19, now the jets spray in the wrong direction.
9. As it relates to the Directive, Stephen Vairo, Complainant’s son, testified on behalf of Complainant that two actuators came with the unit installed and that a third actuator required by the contract was delivered to the residence and never installed by Respondent. As a result, he stated that the fountain, sheer descent, and deck jets can be isolated manually but not by the remote. He further testified that with respect to Directive item number 17, the hand rail was no longer loose but now it was permanently installed rather than being removable.
10. Robert Jensen testified on behalf of Respondent that it was the decorative columns that caused the job to “go south.” He stated that the installation of these particular columns Complainant chose was not part of the contract between the parties and he agreed to install them as a favor to Complainant. He further testified that he had never installed these types of columns before and that they were “out of his league to install.”
11. Regarding the specific Directive items, Mr. Jensen testified as follows:
Complaint Item 2 – With regard to the alleged missing actuator for the water features, page 4 of the contract reflects that Respondent was to supply and install one Easy Touch 4 and “1 Additional actuator valve.” Mr. Jenson claims the system was designed to have only one actuator and not designed so that the fountain, sheer descent, and deck jets would all operate independently. He further claims he upgraded to the Easy Touch 4 pool/spa (which comes with two actuators) at no charge to Complainant to accommodate a future spa, and therefore he contends that Complainant actually received an additional actuator.
Complaint Item 4 – Mr. Jensen testified that Frank Vairo directed Respondent’s workers to alter the installation of the barbeque grill which resulted in insufficient space to open the lid. He further testified that his workers later went to the site and removed stone to repair the grill and Complainant would not allow them to use a few pieces of stone at the site to replace the removed stone. He testified that Complainant was responsible for supplying stone because she was purchasing materials to save money.
Complaint Item 10 – Mr. Jensen testified that his workers came back and corrected the raised pavers as per the Directive at the same time the drain was corrected. He stated he believes the only pavers still uncorrected are those that were not replaced around the base of the hand rail.
Complaint Item 17 – Mr. Jensen testified that the handrail was reinstalled as per the Directive and that it was no longer loose.
Complaint Item 19 – Mr. Jensen testified that they returned and installed the drains as per the Directive. He further testified that if the jets spray in the wrong direction, it merely requires an adjustment and is not a defect.
Complaint Items 7, 8, 9, 23, and 24 – Mr. Jensen conceded that these items relating to the installation of the columns and capitals had not been corrected but stated he does not believe they can be corrected to Complainant’s satisfaction. He stated he therefore attempted to reach a financial resolution with Complainant regarding these items, which Complainant apparently did not accept.
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 in pertinent part among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, any of the following
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. The written directive shall set forth the time within which the contractor is to complete the remedial action. The time permitted for compliance shall not be less than fifteen days from the date of issuance of the directive. A license shall not be revoked or suspended nor shall any other penalty be imposed for a violation of this paragraph until after a hearing has been held.
5. As it relates to A.R.S. § 32-1154(A)(3) concerning a violation of any rule adopted by the Registrar, Arizona Administrative Code Rule 4-9-108(A), provides that “A contractor shall perform all work in a professional and workmanlike manner.”
6. Complainant has presented sufficient evidence to establish that some of Respondent’s work was not performed in a professional and workmanlike manner in violation of A.R.S. § 32-1154(A)(3). Specifically, with respect to the Directive items:
Complaint Item 2 – The contract between the parties (page 4) reflects that the water feature system supplied and installed by Respondent was to include one Easy Touch 4 and “1 Additional actuator valve.” The Easy Touch 4 manufacturer’s documentation reflects that the Easy 4 Touch already comes with 2 actuators. (Complainant’s Exhibit 3). Three actuators may not have been what Respondent intended, but the plain reading of the contract would support a finding that 3 actuators were required to be supplied and installed by Respondent. This is consistent with the evidence that a third actuator was delivered to the site but not installed by Respondent. The Tribunal finds this item to be uncorrected by Respondent.
Complaint Item 4 – There is no dispute that this item concerning the barbeque grill remains uncorrected. Respondent testified that Frank Vairo instructed one of Respondent’s workers to make a change during the installation of the grill which inadvertently resulted in insufficient space to open the lid. The fact that the worker followed such an instruction does not absolve Respondent of responsibility. There was no evidence presented that the worker told Complainant or Mr. Vairo that the change would create a problem; thus, Complainant cannot be held responsible for creating this deficiency. However, the evidence reflects that Respondent attempted to correct this item. Respondent’s workers went to the site and removed stone to allow the grill lid to open but Complainant would not allow them to use a few pieces of stone at the site to replace the removed stone. According to the agreement between the parties, stone was to be supplied by Complainant. In that Complainant prevented correction of this item, the Tribunal finds there to be a valid justification for Respondent’s failure to correct it and this item is deemed to have been corrected by Respondent.
Complaint Item 10 – Complainant stated that there are still raised pavers. Although Respondent testified that it repaired the raised pavers, the evidence reflects that there are still some pavers that were not reinstalled as a result of removal of the railing. The Tribunal finds this item regarding the missing pavers removed to repair the railing to be uncorrected by Respondent
Complaint Item 17 – There was no dispute that Respondent had since reinstalled the handrail and that it was no longer loose. The evidence suggests that in repairing the handrail, it was permanently installed rather than being removable. However, there was no evidence presented to show that the handrail was intended to be removable. The Tribunal finds this item to have been corrected by Respondent.
Complaint Item 19 – There was no dispute that Respondent had since installed or repaired the drains. The evidence reflects that a new issue arose where the jets now spray in the wrong direction. Respondent testified that this merely requires an adjustment and is not a defect. There was no evidence presented to refute that an adjustment would remedy this issue. As Respondent has repaired the drains, the Tribunal finds this item to have been corrected by Respondent
Complaint Items 7, 8, 9, 23, and 24 – There is no dispute that these items relating to the columns and capitals purchased by Complainant and installed by Respondent have not been corrected. Respondent acknowledged that whether this work was included in the contract or not, or done as a favor to Complainant, the work undertaken was to have been performed in a professional or workmanlike manner regardless. The Tribunal finds these items to be uncorrected by Respondent.
7. The Tribunal makes no finding regarding the alleged deficiencies discovered by Complainant after the filing of her Complaint. As the items were not included in the Directive nor do they appear to have been part of any inspection by the Registrar, they are not properly before this Tribunal at this time.
8. Complainant has also presented sufficient evidence to demonstrate a violation of A.R.S. § 32-1154(A)(22) for the failure on the part of Respondent to undertake corrective action without valid justification. Although Respondent corrected some of the Directive items, it failed to resolve the primary Directive items involving issues with Respondent’s installation of the columns and capitals. Respondent offered Complainant a financial resolution to these column issues. Complainant apparently rejected the offer as she had a right to do regardless of how reasonable the offer may or may not have been. Therefore, Respondent’s financial offer to resolve a Directive item that is not accepted by Complainant is not a substitute for corrective work, nor is it valid justification to thereafter not perform corrective work.
9. Complainant has established that Respondent’s license should be disciplined for a violation of § A.R.S. § 32-1154(A)(3) (with respect to Directive item numbers 2, 7, 8, 9, 10, 23, and 24) and A.R.S. § 32-1154(A)(22).
RECOMMENDED ORDER
Based on the foregoing, it is recommended that on the effective date of this Order, Imperial Concepts, Inc.’s, License Numbers 309450 and 223368 are suspended for five days.
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, March 15, 2018.
/s/ Roger Geddes
Administrative Law Judge
Transmitted electronically to:
Jeffrey Fleetham, Director
Registrar of Contractor