ALJDEC decisions subject to certification as final
2017A-5740-CHC-ROC · Registrar of Contractors · 2018-03-27
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
Randall John Salo,
COMPLAINANT,
v.
AZ Century Pool Plastering LLC ,
License No: 289426
RESPONDENT.
No. 2017A-5740-CHC-ROC
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: March 7, 2018, 8:30 A.M.
APPEARANCES: Complainant appeared on behalf of himself; Chris Bartlemus, owner of Respondent, appeared on behalf of Respondent
ADMINISTRATIVE LAW JUDGE: Roger A. Geddes
_____________________________________________________________________
FINDINGS OF FACT
Background and Procedure
1. AZ Century Pool Plastering, LLC (Respondent), is the holder of License Number 289426 issued by the Registrar of Contractors (Registrar).
2. On or about November 14, 2017, Randall John Salo (Complainant), filed a Complaint against Respondent with the Registrar alleging poor work in connection with the plastering of a swimming pool performed by Respondent at Complainant’s residence in Scottsdale, Arizona.
3. Upon completion of an inspection performed by the Registrar on December 6, 2017, the Registrar issued a Directive, dated December 7, 2017, requiring Respondent to correct various alleged deficiencies in Respondent’s work by December 26, 2017, as follows
Complaint Item 1: Plaster fell apart after the first month of completion. Contractor declared they had gotten a bad plaster batch. Contractor does not return text or calls. Contractor agreed to replaster pool under contract.
Directive: Respondent shall correct patchy and cracking pool plaster by appropriate means. Complainant has indicated a possible leak at the floor drain as well.
4. When the Registrar was advised that the foregoing items were not corrected before the Directive deadline, the Registrar then issued a Citation to Respondent, dated December 27, 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 March 7, 2018, at 8:30 A.M. At the hearing, Complainant Randall Salo testified on his own behalf; Chris Bartlemus, owner of Respondent, testified on behalf of Respondent. Matt Gunstra, the Registrar Investigator (Investigator), testified on behalf of the Registrar.
6. The Investigator on behalf of the Registrar testified as to his communications with Complainant and Respondent, his inspection of the job site, and the Directive issued by the Registrar as a result of his observations from his inspection. Specifically, he testified that he observed the pool plaster to be cracking and discolored. He further testified that Complainant informed him that no corrective action had been undertaken.
7. Complainant Randall Salo testified the job resulted from him seeing an advertisement on Craigslist that reflected Respondent’s name and license number. He contacted the number on the advertisement and ultimately accepted a bid from an individual by the name of Arnold Elzy. When the job was completed by Mr. Elzy, a work order/invoice was prepared but Complainant was not offered a copy so Complainant took a photograph of it with his cell phone. (Complainant’s Exhibit 1).
8. Mr. Salo also confirmed the swimming pool plaster was cracking and discolored and stated it began soon after the work was completed on November 24, 2015. He testified that once the problems began with pool, he called the telephone number on the work order/invoice over the course of the next year but was given the “runaround.” He stated that eventually as a result of one of his telephone calls, an individual came out who indicated the pool would need to be re-plastered, but no work was ultimately performed.
9. Mr. Salo testified that he eventually found a different telephone number for Respondent through a Google search. He stated that to increase the chances of Respondent coming out to check the pool, he asked for someone to come out and bid on a new job rather than stating that he was having issues with Respondent’s work. He stated that Chris Bartlemus came out in December 2016 on behalf of Respondent and when he saw the pool, Mr. Bartlemus said something to the effect, “Oh, this is the one.” Mr. Salo further testified that ultimately he and Respondent entered into an agreement for warranty repair, dated March 29, 2017, in which Respondent agreed to repair the pool by January 1, 2018.
10. Chris Bartlemus testified on behalf of Respondent that it was not Respondent that did Complainant’s pool plastering job. He testified that Arnold Elzy was a “scam artist,” that he took Complainant’s money, and that he was selling jobs under Respondent’s name and license number without authorization. He stated he has issues with six other pools in which Mr. Elzy did the work. He further testified that the work order/invoice for the job containing Respondent’s name and license number was a form created by Mr. Elzy with Mr. Elzy’s personal telephone number on it, not Respondent’s.
11. Mr. Bartlemus further testified that Mr. Elzy was his partner from January 2014 to March 2015, but he terminated his relationship with Mr. Elzy when he found out that Mr. Elzy was doing jobs for cash and not reporting the jobs to Respondent. While calling him a partner, he indicated that Mr. Elzy had no ownership in the company, and was merely a salesperson. He also testified that Mr. Elzy was also a subcontractor for Respondent eight years ago.
12. Mr. Bartlemus explained that he was familiar with Complainant’s pool prior to being “lured” by Complainant purportedly to bid a new job because Mr. Elzy had contacted him and told him he, Mr. Elzy, was having a problem with a pool job. Mr. Bartlemus indicated that he immediately admonished Mr. Elzy to not do jobs under Respondent’s license. He further testified that he entered into the warranty work order agreement with Complainant because Mr. Elzy had promised to pay for the work, but that Mr. Elzy later backed out of that promise. Mr. Bartlemus stated Respondent could not go forward with the work on its own due to a lack of capital and an illness in his family.
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....
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 cause to discipline Respondent’s contractor’s license under A.R.S. § 32-1154(A)(3) for Respondent’s failure to perform the work in a professional and workmanlike manner.
There is no dispute that the plaster in Complainant’s pool was cracking and discolored. However, the issue is whether Respondent is responsible for the deficient work or whether someone else is.
7. The Tribunal is not persuaded that the relationship between Respondent and Arnold Elzy, who did the work on Complainant’s pool, had truly terminated at the time work was performed for Complainant. The evidence showed Mr. Elzy was formerly a subcontractor of Respondent and later a partner or salesperson of Respondent. Respondent presented no written evidence as to the alleged May 2015 termination of Respondent’s relationship with Mr. Elzy, six months before Complainant’s job was completed.
8. The Tribunal finds it most peculiar that after Mr. Elzy may have done a number of other jobs under Respondent’s license purportedly without Respondent’s authorization or knowledge, Mr. Elzy would initiate contact with Mr. Bartlemus to inform him of the issues with Complainant’s job. It would seem that if Mr. Elzy were truly illegally using Respondent’s contractor’s license and name, initiating contacting with Respondent for any reason, much less issues with a job that was not authorized, would be unlikely. Further, the testimony was not clear how Mr. Bartlemus became aware that Complainant’s pool was done under Respondent’s license. Again, it would seem highly unlikely that Mr. Elzy would admit to such.
9. The Tribunal also finds it noteworthy that upon Respondent becoming aware through Mr. Elzy of Complainant’s issues with his pool, he did not contact Complainant even to inform him that it was supposedly not Respondent that had done the job. There is insufficient evidence to show the relationship had formally ended by the time the work was done for Complainant, and therefore the Tribunal finds that Respondent is responsible for the work performed for Complainant by Arnold Elzy.
10. Moreover, Respondent entered into a new contract with Complainant to repair the workmanship issues with Complainant’s pool. While Respondent was purportedly relying on Mr. Elzy to pay for the warranty work, the fact that Mr. Elzy later refused to pay for the work does not release Respondent from its obligation to complete the work by the agreed-upon date, January 1, 2018.
11. 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. There was insufficient evidence presented to support a finding of a valid justification for Respondent not undertaking corrective action.
12. Complainant has established that Respondent’s license should be disciplined for a violation of § A.R.S. § 32-1154(A)(3) 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, AZ Century Pool Plastering, LLC’s, License Number 289426 is suspended for two 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 27, 2018.
/s/ Roger Geddes
Administrative Law Judge
Transmitted electronically to:
Jeffrey Fleetham, Director
Registrar of Contractors