ALJDEC decisions subject to certification as final

2018A-05527-CHC-ROC · Registrar of Contractors · 2019-11-08

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: October 22, 2019 APPEARANCES: Complainant Joy Allison Morse appeared on behalf of herself. Respondent Daniel Mark Henderson DBA: Daniel M. Henderson appeared on behalf of himself. ADMINISTRATIVE LAW JUDGE: Velva Moses-Thompson _____________________________________________________________________ FINDINGS OF FACT 1. On or about June 15, 2018, Mr. Henderson agreed to remodel Ms. Morse’s pool. 2. On or about June 18, 2018, Mr. Henderson began work on Ms. Morse’s pool. Mr. Henderson stopped work on the pool on or about August 21, 2018. 3. On or about November 19, 2018, the Arizona Registrar of Contractors (ROC) received a complaint from Ms. Morse alleging poor workmanship on the part of Mr. Henderson, in connection with a pool remodeling contract. 4. On January 16, 2019, Registrar Investigator Steve Klein conducted a job site inspection. Investigator Klein substantiated several complaint items, including but not limited to, the above ground skimmer. Investigator Klein’s investigation notes regarding Complaint Item 1 provided as follows: Complaint Item 1: Skimmer Size is not adequate Investigator’s Observation: Respondent agreed it is smaller, however this job is a pool repair and the existing area for the pump to fit would only except the smaller skimmer. Respondent also said it is an above ground skimmer but can be used on unground pools also. (He’s going to send the information from the manufacturer.

Unless Respondent provides documentation from the manufacturer stating the skimmer can be used on in-ground pools.

5. On March 11, 2019, Investigator Klein issued a Directive to Mr. Henderson. The March 11, 2019 Directive provided, in relevant part, as follows: After investigation, the Registrar has substantiated that your work fails to meet minimum workmanship standards (see 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 provide the Registrar with satisfactory written proof of your compliance with this Directive prior to 5:00 p.m. on March 28, 2019.

You are hereby directed to correct the following violations by appropriate means:

Complaint Item 1: Skimmer Size is not adequate • Unless Respondent provides documentation from the manufacturer stating the skimmer can be used on in-ground pools.

Complaint Item 2: Simmer Mouth – Pebble Tec all the way to skimmer is pealing • Verified peeling plaster and Respondent agreed to correct. • Complainant Item 7: Pebble Tee surface is really rough • Verified several rough areas where plater meets tile.

Complaint Item 8: Grout – multiple hairline cracks • Respondent agreed to correct

Complaint Item 12: Pool Decking – Patch is a different color than the rest of the deck • Painting required as corollary repair because other work does not match surrounding painting. Paint should match surrounding areas as closely as possible.

Complaint Item 13: Pool Coping – Paint is gone in several areas • Verified one area by pool skimmer

6. Mr. Henderson did not repair the complaint items listed in the Directive by the due date. 7. On April 4, 2019, the ROC issued a Citation against Mr. Henderson’s license. In the Citation, the ROC alleged that Mr. Henderson Ariz. Rev. Stat. §§ 32-1154(A)(3) and (A)(22). 8. Mr. Henderson filed a timely appeal. 9. The matter was referred to the Office of Administrative Hearings for an evidentiary hearing. 10. On May 6 2019, the ROC issued a Notice of Hearing and Complaint

setting the above-captioned matter for hearing at 8:30 a.m. on July 1, 2019 at the Office of Administrative Hearings in Phoenix, Arizona. [1] 11. A hearing was held on October 22, 2019. 12. At hearing, Mr. Henderson acknowledged that he failed to correct the items in the Directive by the deadline of March 28, 2019. Mr. Henderson apologized to Ms. Morse and offered to complete the items. However, Mr. Henderson contended that he did not perform poor workmanship when he installed an above ground skimmer below the ground. In support of his position, Mr. Henderson offered a letter from the District Sales Manager of the manufacturer into evidence. The manufacturer’s letter provided, in relevant part, as follows: The above ground skimmer has never been officially tested by Hayward for an in-ground skimmer. The face plate and gasket seal help make for a faster installation and give the product more supportive strength.

Although the SP109 Skimmer has never been officially tested for in-ground installation, the product has been installed in the Phoenix market for well over 15 years with no reported instances. The smaller body of the skimmer is the main reason for the need in older pools when being remodeled. To date, Hayward has not felt there is high enough demand to warrant the production of a specific smaller body skimmer for retrofit in- ground applications.

The best way to validate my statements is to talk with previous homeowners who have installed a smaller body skimmer installed on their property. The warranty of the skimmer does not change. It still holds the 1 year parts warranty regardless of application.

13. Investigator Klein testified regarding his inspection and the issuance of the Directive. Investigator Klein explained that Mr. Henderson performed poor work when he remodeled Ms. Morse’s pool. However, Investigator Klein testified to the effect that he understood how Mr. Henderson’s decision to install the above ground skimmer was appropriate after he reviewed the manufacturer’s letter at the hearing. 14. Ms. Morse argued that Mr. Henderson performed poor work with regard to all of the complaint items listed in the Directive. 15. Administrative notice is taken of Respondent’s prior License record on November 8, 2019. Such prior License record reflects that Respondent’s License No. 191093 was first issued on December 8, 2003, and is active. Such prior License record also reflects that the Registrar has never taken disciplinary action against Respondent’s license. Such prior License Record also reflects that Respondent’s License No. 165089 was issued on May 14, 2001 and is active. Such prior License record also reflects that there is one open complaint against Respondent’s license. CONCLUSIONS OF LAW 1. Unless otherwise provided by law, a party asserting a claim, right, or

entitlement bears the burden of proof; a party asserting an affirmative defense has the burden of establishing the affirmative defense. The standard of proof on all issues in this matter is that of a preponderance of the evidence. Ariz. Admin. Code § R2-19-119. 2. “At a hearing on an agency action to suspend, revoke, terminate or modify on its own initiative material conditions of a license or permit, the agency has the burden of persuasion.” Ariz. Rev. Stat. § 41- 1092.07(G)(2). 3. “At a hearing on an agency's imposition of fees or penalties or any agency compliance order, the agency has the burden of persuasion.” Ariz. Rev. Stat. § 41-1092.07(G)(3). 4. A preponderance of the evidence is: The 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.

Black’s Law Dictionary 1373 (10th ed. 2014). 5. Statutes should be interpreted to provide a fair and sensible result. Gutierrez v. Industrial Commission of Arizona, 226 Ariz. 395, 249 P.3d 1095 (2011)(citation omitted); State v. McFall, 103 Ariz. 234, 238, 439 P.2d 805, 809 (1968) ("Courts will not place an absurd and unreasonable construction on statutes."). 6. “Statutes shall be liberally construed to effect their objects and to promote justice.” Ariz. Rev. Stat. § 1-211(B). 7. The purpose of the Registrar’s licensing statutes is to protect the public from unscrupulous, unqualified, and financially irresponsible contractors. See Aesthetic Property Maintenance v. Capital Indem. Corp., 183 Ariz. 74, 900 P. 2d 1210 (1995). 8. Ariz. Rev. Stat. section 32-1154(A) provides that The holder of a license or any person listed on a license pursuant to this chapter shall not commit any of the following acts or omissions: ***** 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.

9. Ariz. Admin. Code section R4-9-108(A) provides that “A contractor shall perform all work in a professional manner.” 10. “Ariz. Admin. Code section R4-9-108(B) provides that “A contractor shall perform all work in accordance with any applicable building codes and professional industry standards. For work to be performed in accordance with professional industry standards, a contractor shall use such skills, 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.” 10. The preponderance of the evidence shows that Respondent’s work as described in complaint items 2, 7, 8, 12 and 13, failed to meet minimum workmanship standards, in violation of Ariz. Rev. Stat. section 32- 1154(A)(3), namely A.A.C. R4-9-108.[2] 11. The preponderance of the evidence does not show that Respondent performed poor work when he installed the above ground skimmer in Ms. Morse’s pool. Respondent provided a letter from the manufacturer showing that the above ground skimmer has been used below ground for over 15 years and that the manufacturer had not received a complaint. Furthermore, Investigator Klein testified to the effect that the letter provided from the manufacturer shows that the installation of the above ground skimmer below ground did not constitute poor work. 12. The preponderance of the evidence shows that Respondent failed to comply with the Directive without valid justification, in violation of Ariz. Rev. Stat. section 32-1154(A)(22).

RECOMMENDED ORDER Based on the foregoing, it is recommended that on the effective date of the Order, the Registrar shall suspend the license of Daniel Mark Henderson, DBA: Daniel M. Henderson for one day. It is further recommended that the Registrar require Respondent to pay the sum of $250.00 as a civil penalty pursuant to Ariz. Rev. Stat. section 32-1154(E). It is further recommended that if Respondent fails to pay the entire amount of the civil penalty on or before thirty days following the effective date of the Registrar’s final order, the Registrar revoke Respondent’s license, effective on such deadline date. No future license shall be issued to any entity consisting of persons associated with Respondent, as defined in Ariz. Rev. Stat. section 32-1101(A)(5), unless Respondent tenders payment of any outstanding prior civil penalty. Done this day, November 8, 2019.

/s/ Velva Moses-Thompson Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director Registrar of Contractors

----------------------- [1] The hearing was continued to October 22, 2019. [2] A.R.S. § 32-1154(A)(3) includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, “[v]iolation of any rule adopted by the Registrar.” A.A.C. R4-9-108 requires that “[a]ll work shall be performed in a professional and workmanlike manner” and that “[a]ll work shall be performed in accordance with any applicable building codes and professional industry standards.”

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Office of Administrative Hearings 1740 West Adams Street, Lower Level Phoenix, Arizona 85007 (602) 542-9826