ALJDEC decisions subject to certification as final
2018A-1902-CHC-ROC · Registrar of Contractors · 2018-09-17
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
Matthew L Pifer,
COMPLAINANT,
v.
Sunwest Pools and Landscaping LLC,
License No:
288172
RESPONDENT.
No. 2018A-1902-CHC-ROC
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: August 27, 2018, 1:00 P.M.
APPEARANCES: Complainant Matthew L. Pifer appeared on his own behalf; Ricardo Larios, owner and President of Respondent, appeared on behalf of Respondent
ADMINISTRATIVE LAW JUDGE: Roger A. Geddes
_____________________________________________________________________
FINDINGS OF FACT
Background and Procedure
1. Sunwest Pools and Landscaping, LLC (Respondent), is the holder of License Number 288172 issued by the Registrar of Contractors (Registrar).
2. On or about April 25, 2018, Matthew L. Pifer (Complainant) filed a Complaint against Respondent with the Registrar alleging abandonment and poor work in connection with pool decking work by Respondent at Complainant’s residence in Scottsdale, Arizona.
3. After an inspection performed by the Registrar on May 30, 2018, the Registrar issued a Directive, dated May 30, 2018, requiring Respondent to correct various alleged deficiencies in Respondent’s work by June 19, 2018, as follows:
Complaint Item 1: Pool decking "cool deck" was improperly applied - "chimneys" throughout deck.
Verified pinholes and peeling in the throughout the finish.
Complaint Item 5: Pool decking colorant is completely wrong
Verified the color didn’t match the sample that was provided, also Respondent agreed to correct.
Complaint Item 8: Painted over spa button for jets now disabled - needs replacement
Verified and Respondent agreed to correct.
Complaint Item 9: Painted over aerator - needs replacement
Verified and Respondent agreed to correct.
Complaint Item 10: Material in Escutcheons for sleeves, water reservoir, skimmer
Verified overspray and peeling of the finish around the skimmer.
Complaint Item 11: Deco joints not cut straight
Over cuts at the ends of the joints should be corrected.
Complaint Item 12: Deco joints not painted w/ enough products - can see last decking
Verified finish is peeling.
Complaint Item 13: Product lifting from a deco joint
Verified finish is peeling.
Complaint Item 15: Overspray on the landscaping rocks and plants wasn't cleaned up
Verified overspray.
4. After being informed that Respondent had failed to comply with Directive, the Registrar then issued a Citation to Respondent, dated June 21, 2018, 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 issued a Notice of Hearing, setting a hearing for August 27, 2018, at 1:00 P.M. At the hearing, Complainant Matthew Pifer testified on his own behalf and presented the testimony of Vito Giannini. Respondent presented the testimony of Ricardo Larios, owner and President of Respondent. Steve Klein, the Registrar Investigator (Investigator), testified on behalf of the Registrar. The Tribunal received and admitted Respondent’s exhibit number 1.
6. The Investigator testified on behalf of the Registrar as to his communications with Complainants and Respondent, his inspection of the job site, and the Directive issued by the Registrar as a result of his observations from his inspection. He testified further that at the inspection, Respondent agreed to remedy various Directive items as noted in the Directive, including Complaint Item 5 regarding the correct color finish to be applied to the deck. He stated that Respondent provided two different color samples at the inspection, neither of which matched the color of the completed deck.
7. Complainant Matthew Pifer testified that Respondent failed to correct any of the Directive items despite the fact that Respondent stated by email, dated June 6, 2018, that it agreed to recoat and stain the entire deck. (attached to Complaint). Mr. Pifer stated that he had had concerns with the color finish of the deck applied by Respondent and had brought it to Respondent’s attention immediately. He further stated that Respondent’s work ended about April 11, 2018, and that he had sent an email to Respondent dated April 11, 2018, in which he had stated that the color was “different then (sic) the sample board I contracted you from.” (attached to Complaint). He further testified that he had signed a contract provided by Respondent and had selected a Desert Trail stain finish which had been handwritten on the contract, but that after he had signed the contract, someone had struck out Desert Trail and written in a High Sierra color finish. (Respondent’s Exhibit 1). He further stated that he was not the person that had changed the color notation in the contract, that he had not signed the contract with the handwritten change to High Sierra paint, and that he had never even seen a sample of High Sierra paint. He testified further that the deck color finish Respondent ultimately applied was neither Desert Trail nor High Sierra, but was in fact Brown Suede. He stated that he had recently discovered a can of that paint left by Respondent’s crew and that it matched the color of the finished deck. He stated he had never seen or been presented with a sample of Brown Suede nor had he ever authorized that color.
8. Vito Giannini, who resides at the residence, testified on behalf of Complainant that Respondent’s crew had left a can of Brown Suede paint that they had applied to the deck which he stated matched the color of the finished deck.
9. Ricardo Larios testified on behalf of Respondent that he did not contest any of the Directive items other than Complaint item 5 relating to the incorrect color finish of the deck. He stated that with respect to the color, he believed that Complainant had signed the contract selecting the High Sierra paint, but that he acknowledged he was not present when the contract was signed nor had he been involved in the color selection process. He stated he yesterday spoke with his salesman on this particular job, Paul Schalarek, who is still employed by Respondent, who indicated he could not remember how or when the color selection in the contract had been changed. Although initially Mr. Larios testified that the color finish applied to the deck was High Sierra as reflected in the contract, he later testified that he had reason to believe that his crew and Complainant collectively had changed the proposed color to be applied to the deck without informing him. He further stated that he terminated the employment of his former crew on the job.
10. Mr. Larios stated that Respondent did not return to do corrective work because of Complainant’s failure to clear up the deck color issue, Complainant’s failure to produce a copy of the signed contract that Respondent had requested of him, and Complainant’s failure to sign a waiver that Respondent had requested releasing Respondent from personal injury liability for additional work.
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 acts:
...
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.
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. A.R.S. § 32-1154(A)(3). 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. As previously stated, Respondent did not contest the existence of eight Directive items and only contested Complainant Item 5 regarding the incorrect color finish that had allegedly been applied to the deck. The parties argued at length as to what color finish was specified in the contract at the time of signing. Complainant maintained that he had signed the contract reflecting the Desert Trail stain and that someone had later crossed out Desert Trail and written in High Sierra. Respondent contended that Complainant had signed the contract when it had reflected the High Sierra paint, although Mr. Larios conceded he had no personal knowledge in that regard.
7. Regardless of which color finish was reflected in the contract at the time Complainant signed it, Complainant has presented sufficient evidence to show that he did not receive either color, or any color that he had selected. Respondent at first argued that Complainant had received High Sierra paint, but Respondent offered no evidence, such as a color sample, to prove that Complainant had in fact received that color. In later testimony, Respondent speculated that its former crew and Complainant collectively had changed the color at the project site, but offered no evidence to refute Complainant’s testimony that that in fact never occurred. Simply stated, Complainant presented sufficient evidence that neither color in the contract, Desert Trail, the crossed out color, or High Sierra, the handwritten inserted color, was applied to the deck and Respondent presented no evidence that either color, or any color selected by Complainant, was in fact applied to the deck. Therefore, Complainant has established that Respondent failed to perform the work in a professional and workmanlike manner with respect to all Directive items.
8. A.R.S. § 32-1154(A)(22). Complainant has presented sufficient evidence to establish cause to discipline Respondent’s contractor’s license under A.R.S. § 32-1154(A)(22). Respondent argued that Complainant’s “obstruction” constituted a valid justification for the failure to complete the corrective work. Specifically, Respondent claimed that the obstruction was Complainant’s failure to clear up the deck color finish issue, Complainant’s failure to produce Complainant’s copy of the signed contract that Respondent had requested, and Complainant’s failure to sign a waiver Respondent had requested releasing Respondent from personal injury liability for additional work. It is noted at the outset that Respondent agreed to certain corrective work at the inspection, and also agreed by email to recoat and stain the entire deck without conditions imposed. However, even if Respondent had not made such representations, none of these claimed issues are a prerequisite to Respondent’s obligation to proceed with corrective action. Further, there was no evidence presented that Complainant denied Respondent access at any time. Lastly, even if there had been a color issue, this in no way should have prevented Respondent from proceeding to remedy the other eight non-color matters in the Directive. Accordingly, Respondent has failed to present a valid justification for not proceeding with corrective work.
9. 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, Sunwest Pools and Landscaping, LLC’s, License Number 288172 is suspended for two days.
IT IS FURTHER RECOMMENDED that pursuant to A.R.S. § 32-1154(E), Respondent must pay to the Registrar, a civil penalty of $250.00 in certified funds on or before 30 days from the effective date of this Order.
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 A.R.S. § 32-1101(A)(5), unless Respondent tenders payment of the outstanding prior civil penalty.
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, September 17, 2018.
/s/ Roger Geddes
Administrative Law Judge
Transmitted electronically to:
Jeffrey Fleetham, Director
Registrar of Contractors