FINACT2017A-4985-RFA-ROC.pdf

2017A-4985-RFA-ROC · Registrar of Contractors · 2020-01-28

REGISTRAR OF CONTRACTORS OF THE STATE OF ARIZONA Marlene Vairo, Case No. 2017-4985 COMPLAINANT, Docket No. 2017A-4985-RFA-ROC v.

Imperial Concepts Inc. License No. ROC 309450, FINAL ADMINISTRATIVE DECISION AND ORDER RESPONDENT. Under A.R.S. § 41-1092.08(B), the Registrar may review and accept, modify, or reject an administrative law judge’s written decision. If the Registrar modifies or rejects that decision, then the Registrar must provide written justification setting forth the reasons for the modification or rejection of each finding of fact or conclusion of law. REGISTRAR’S ACCEPTANCE In this case, a hearing was held, and the administrative law judge issued a written decision. See Administrative Law Judge Decision, attached. The Registrar reviewed that decision and accepts it. CONCLUSION AND ORDER Because the Registrar has accepted the administrative law judge’s decision, that decision is the final administrative decision in this case and becomes effective on March 4, 2020. FINAL NOTES On page 5, line 6, replace “November 9, 2019” with “November 8, 2019.” Dated January 24, 2020. By: /s/ Joseph Citelli Joseph Citelli Chief Counsel Chief of Legal and Recovery Fund Arizona Registrar of Contractors

of 2 REGISTRAR OF CONTRACTORS 1700 W. Washington St.– Ste. 105 – Phoenix, AZ 85007-2812 Telephone (602)542-1525 Toll Free (877)692-9762 Lg131 8/19 Copy mailed via USPS First Class mail January 24, 2020 to: Respondent Imperial Concepts Inc PO Box 26742 Scottsdale, AZ 85255 Complainant Marlene Vairo 2922 W Night Owl Ln Phoenix, AZ 85085 Copy sent electronically this same date to: Registrar’s Counsel John Tellier, Assistant Attorney General Office of Administrative Hearings Velva Moses-Thompson, Administrative Law Judge Respondent at email address on record with the Registrar Complainant at email address on record with the Registrar Case No. 2017-4985 / DE

of 2 REGISTRAR OF CONTRACTORS 1700 W. Washington St.– Ste. 105 – Phoenix, AZ 85007-2812 Telephone (602)542-1525 Toll Free (877)692-9762 Lg131 8/19 RECEIVED 1.21.2020 ROC LEGAL

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Marlene Vairo, No. 2017A-4985-RFA-ROC COMPLAINANT, v. ADMINISTRATIVE LAW JUDGE DECISION Imperial Concepts Inc., DBA: Imperial Pools & Landscape, ROC License: ROC 309450, RESPONDENT.

HEARING: December 11, 2019 with the record held open until December 30, 2019. APPEARANCES: Complainant Marlene Vairo appeared on behalf of herself. Robert Jensen appeared on behalf of Respondent Imperial Concepts, Inc., DBA: Imperial Pools & Landscape (Imperial). Assistant Attorney General John Tellier appeared on behalf of the Arizona Registrar of Contractors. ADMINISTRATIVE LAW JUDGE: Velva Moses-Thompson _____________________________________________________________________ FINDINGS OF FACT

1. Imperial entered into a contract with Ms. Vairo to remodel her pool. 2. In or around July of 2017, Imperial remodeled Ms. Vairo’s pool. 3. In October of 2017, Ms. Vairo filed a complaint with the Arizona Registrar of Contractors (ROC) against Imperial’s license. The complaint contained an allegation that Imperial performed poor work in connection with a pool remodeling contract. 4. On or about November 3, 2017, ROC Investigator Steve Klein completed a jobsite inspection. 5. On or about November 7, 2017, the ROC issued a DIRECTIVE to Imperial. The November 7, 2017 DIRECTIVE provided, in relevant part, as follows: After investigation, the Registrar has substantiated that your work fails to meet minimum workmanship standards (see RECEIVED 1.21.2020 ROC LEGAL

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 the issuance of a Citation, discipline of your license, and a civil penalty pursuant to A.R.S. § 32-1154(E) 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 notify the Registrar’s assigned Investigator of your compliance with this Directive prior to 5:00 p.m. on 11-24-17. You are hereby directed to remedy the following violations by the appropriate means: 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.

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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. 6. On December 15, 2017, the ROC issued a CITATION against Imperial’s license. Through the CITATION, the ROC alleged that Imperial may have violated ARIZ. REV. STAT. section 32-1154(A)(3)(specifically, ARIZ. ADMIN. CODE section R4-9-108; ARIZ. REV. STAT. section 32-1154(A)(22). 7. Imperial requested a hearing regarding the December 15, 2017 CITATION. 8. A hearing was conducted by Administrative Law Judge Geddes. Judge Geddes found that Imperial had violated ARIZ. REV. STAT. section 32-1154(A)(3) and (A)(22). Judge Geddes concluded that Imperial had not corrected Complaint Items 2, 4,

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10, 7, 8, 9, 23, and 24. Judge Geddes’s recommended decision provided in the Conclusions of Law, in relevant pat, as follows: Complaint Items 7, 8, 9, 23, and 24 – There is not 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 workmanlike manner regardless. The Tribunal finds these items to be uncorrected by Respondent. 9. On March 23, 2018, the ROC issued a Final Administrative Decision and Order accepting Judge’s Geddes’s recommended decision. 10. On November 19, 2018, the ROC received Ms. Vairo’s request for a payout from the recovery fund. The total amount that Ms. Vairo owed Imperial under the contract and the written change orders was $73,708.12. Ms. Vairo paid $72,688.92 to Imperial. 11. Ms. Vairo submitted three contractor bids to correct the work. The lowest bid was from Big Daddy Construction and Design, LLC (Big Daddy) in the amount of $22,316.86. The bid from Big Daddy was for the demolition of the gazebo, the installation of a full 12x12 gazebo over existing BBQ and Deck, matching paint and roof tiles, stack stone on base 2 pillars (stack stone), clean up, engineering/permit warranty, replacement of pillars, pavers repair, and the installation of the actuator valve. 12. The ROC used the bid from Big Daddy bid to calculate the payout. 13. The ROC disallowed the stack stone portion of the bid because it was not included in the November 7, 2017 DIRECTIVE. The bid estimate for the stack stone was $458. The ROC disallowed a total of $493.25, which included the estimate and taxes. 14. The ROC determined that Ms. Vairo was entitled to a recovery fund amount that was the equivalent the Big Daddy estimate in the amount of $22,316.86 less $493.25 and the amount left owing on the contract. The ROC recommended that Ms. Vairo be paid $20,804.41 from the recovery fund.

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15. The ROC notified Ms. Vairo that she was eligible for a recovery fund payout in the amount of $20,804.41. 16. Imperial requested a hearing regarding the payout. 17. The matter was referred to the Office of Administrative Hearings (OAH) for an evidentiary hearing. 18. On November 9, 2019, the Registrar issued a NOTICE OF HEARING setting the above-captioned matter for hearing on December 11, 2019, at the OAH in Phoenix, Arizona. 19. A hearing was held on December 11, 2019. 20. Robert Jensen testified on behalf of Imperial. The ROC presented the testimony of ROC Legal Assistant Daniel Edwards and submitted exhibits 1 through 16. 21. Mr. Jensen contended that the recovery fund payout amount was incorrect because Ms. Vairo failed to pay the amount owed under a contract addendum. Mr. Jensen provided no written evidence that Ms. Vairo signed the addendum. 22. Mr. Jensen also contended that the November 7, 2017 DIRECTIVE did not include a demolition of the pergola but only a repair of the columns. Mr. Jensen contended that the Pergola was not supported by decorative columns. CONCLUSIONS OF LAW 1. This matter lies within the Registrar’s jurisdiction. 2. ARIZ. REV. STAT. § 32-1132(A) provides that “[a]n award from the fund is limited to the actual damages suffered by the claimant as a direct result of the contractor's violation but shall not exceed an amount necessary to complete or repair a residential structure or appurtenance within residential property lines. . . .” Respondent bears the burden of proof to establish that the proposed payout from the Fund is incorrect by a preponderance of the evidence.1 3. “A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.”2 A preponderance of the evidence is

1 See A.A.C. R2-19-119(A) and A.A.C. R2-19-119(B) (1); see also Vazanno v. Superior Court, 74 Ariz. 369,

372, 249 P.2d 837 (1952). MORRIS K. UDALL, ARIZONA LAW OF EVIDENCE § 5 (1960).

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“[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.”3 4. After review of all the evidence, the Tribunal concludes that the award provided by the Fund is an accurate reflection of Complainants’ actual damages. Respondent failed to establish that payout recommended by the ROC was based upon estimates for work that was beyond the scope of the DIRECTIVE. Furthermore, the award appears to properly remedy the workmanship violations for which Respondent was responsible. Respondent failed to establish by a preponderance of the evidence that the payout of $20,804.41 was improper or excessive. RECOMMENDED ORDER Based on the foregoing, it is recommended that on the effective date of the Registrar’s final order, Complainant receive a payout from the Residential Contractors’ Recovery Fund in the amount of $20,804.41. 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 days from the date of that certification. Done this day, January 21, 2020.

/s/ Velva Moses-Thompson Administrative Law Judge

Transmitted electronically to: Jeffrey Fleetham, Director Registrar of Contractors

3 BLACK’S LAW DICTIONARY 1220 (8th ed. 1999).

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