ALJDEC decisions subject to certification as final

2018A-2305-CHC-ROC · Registrar of Contractors · 2018-10-23

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: October 15, 2018, at 8:30 a.m. APPEARANCES: Suzanne M. DeRoock (“Complainant”) was represented by Zachary D. Giammarco, Esq., Giammarco Law Office PLLC, Gilbert Poolman LLC (“Respondent”) appeared through Travis Tanner (“Jake”) Boyer, its qualifying party/ member. ADMINISTRATIVE LAW JUDGE: Diane Mihalsky _____________________________________________________________________

FINDINGS OF FACT Background and Procedure 1. On or about March 5, 2005, the Arizona Registrar of Contractors (“the Registrar”) issued License No. ROC289980 for Specialty Residential R-6 Swimming Pool Service and Repair to Respondent. On or about November 7, 2016, the Registrar issued License No. ROC309759 for Specialty Dual CR-36 Plastering to Respondent. 2. On or about May 22, 2018, Complainant filed a complaint with the Registrar against Respondent alleging various items of poor workmanship in Respondent’s performance of its March 19, 2018 contract to refurbish the pool at Complainant’s property, located at 2331 E. Cedar Pl., Chandler, Arizona 85259.[1] 3. The Registrar assigned the complaint to its Investigator, Steve Nelsen, for investigation. Investigator Nelsen performed a jobsite inspection on June 21, 2018, which both parties attended. 4. On July 9, 2018, Investigator Nelsen issued a Directive to Respondent to repair certain items on Complainant’s complaints on or before 5:00 p.m. on July 27, 2017, in relevant part as follows: 1. broken spanish tile around perimeter of pool. 2. cement stuck to plaster in the bottom of the pool. 3. material used on coping under water feature poor work/poor material (Properly finish concrete). 4. debris/cement left in various spots in yard and decorative rock. 5. 2 broken fountain heads/3 broken/missing white fountain heads in pool. 6. damage to 2 decorative pillars. 7. exposed cement chunks and coping back/not filled to ground level.[2]

5. After Complainant informed Investigator Nelsen that Respondent had not complied with the July 9, 2018 directive, the complaint was referred to the Registrar’s Legal Department. On August 1, 2018, the Registrar issued a Citation against Respondent’s contractor’s license, charging cause to revoke or suspend the license under A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108, and A.R.S. § 32-1154(A)(22). 6. Respondent filed a timely written answer to the Citation, denying any violation because Complainant had refused to allow reasonable access for Respondent’s subcontractors to perform repairs and, instead, had filed a complaint against Respondent with the Chandler Police Department.[3] 7. The Registrar referred the matter to the Office of Administrative Hearings, an independent state agency, for an evidentiary hearing. An evidentiary hearing was held on October 15, 2018. Complainant testified and submitted 25 exhibits. Respondent’s qualifying party/member Travis Tanner (“Jake”) Boyer testified. Because Investigator Nelsen had left the Registrar’s employment, Investigator Jim Dimond testified about his review of Inspector Nelson’s investigation, the Registrar’s workmanship standards and procedures for investigating workmanship complaints, and his prehearing jobsite inspection. Hearing Evidence 8. Complainant lives in the house at 2331 E. Cedar in Chandler with her husband, who is a doctor, her three daughters, her two stepsons, four dogs, and three cats. The house has a pool. 9. The pool needed work. Because Complainant’s husband works long hours, she entered into contracts with Respondent for pool repairs and oversaw Respondent’s performance of the repairs. 10. On March 27, 2017, Respondent contracted with Complainant to refinish and repaint the slide/water feature and to repair cracks at the pool for $5,000.00, to replace the coping for $4,500.00, and to acid-wash the tile for $900.00, for a total cost of $10,400.00, payable 50% down and 50% upon completion of the project. On that date, Complainant wrote a check for $5,200.00 to Respondent.[4] 11. Complainant testified that Respondent refinished and repainted the slide/ water feature, acid-washed the tile, and removed the coping. 12. Complainant testified that Respondent did not bring samples of replacement coping to Complainant’s home. Instead, Mr. Boyer told Complainant that she could pick out replacement coping at Respondent’s supplier’s warehouses in Casa Grande or on E. Baseline Rd. in Mesa. Complainant testified that because her husband is very busy and the family took several vacations for spring break (one week), summer (two weeks), fall break (one week), and another vacation in the fall (one week), Complainant and her husband did not pick out any replacement coping. 13. Complainant testified that Respondent did not contact her to follow up on the status of the project, with the exception of one text. Complainant testified that she contacted Respondent’s office two or three times in early 2018 about completing the project. 14. On or about March 19, 2018, Respondent submitted a bid in the amount of $6,750.00 to install “Bullnose Travertine coping and matching tile around the bottom of 3 pillars. This price also includes installation of gate on waterslide.”[5] Complainant explained that the price was higher than the price provided a year earlier because Mr. Boyer said that he would have to re-measure the pool and that the price for coping had increased. 15. Complainant testified that in March 2018, she wrote a check in the amount of $3,375.00 for half the price of Respondent’s revised bid. Complainant testified that Respondent picked out and supplied the replacement coping and that she was not involved in the process. 16. Complainant testified that Respondent’s subcontractors started installing the coping on April 9, 2018. After Respondent installed the coping and gate, Complainant testified that the pool was full of concrete, some of the Spanish tile was broken, and workers left a mess at the jobsite. Complainant testified that she also had surgery that month. 17. Complainant testified that Mr. Boyer tried to convince her to hire Respondent to remodel the pool on May 3, 2018, but that because it was her birthday, she did not immediately respond.[6] She testified that Respondent’s attempt to “upsell” the job made her feel uncomfortable and pressured. 18. Complainant testified that although she texted Respondent about completing repairs, nothing was done until after she filed the complaint with the Registrar. Complainant acknowledged that Respondent’s subcontractors, not Respondent, were doing the work. 19. Mr. Boyer’s written answer to the Citation that he filed on behalf of Respondent stated that after his subcontractors completed 95% of the job, Complainant became combative and difficult and demanded that Respondent hire another company to complete the job and that she be allowed to deduct whatever she paid the new contractor from the amount that she owed Respondent. When Respondent refused to accede to Complainant’s demand, she refused to allow it back onto the jobsite.[7]

20. Mr. Boyer’s written answer on behalf of Respondent also stated that Complainant allowed Respondent’s subcontractors back on the jobsite on the day after the June 21, 2018 jobsite inspection but, when she saw that most of the items of complaint were being repaired, she refused to allow the subcontractors back because she said that she was going on vacation until the middle of July 2018. Shortly thereafter, Mr. Boyer stated that Complainant contacted the Chandler Police Department. 21. Complainant testified that Mr. Boyer constantly harassed her. As evidence, she submitted his text threatening to send unpaid amounts on her account to a collection agency[8] and Mr. Boyer’s offer on or about June 7, 2018, to deduct $1,000.00 from the amount owed to allow her to complete repairs with another contractor.[9] Even after she filed the complaint with the Registrar, Complainant testified that Mr. Boyer kept contacting her, even after she requested that he stop contact.[10] 22. Complainant testified that Mr. Boyer’s texts made her very uncomfortable because she did not know what Mr. Boyer was trying to do and that his long texts made her feel like he was trying to manipulate her and push her into something that she did not understand. Complainant testified that Mr. Boyer knew that her husband worked long hours and that it was up to her to take care of the pool. Complainant testified that she does not feel that she owes anything to Respondent because the job is not complete. 23. After Investigator Nelsen issued the July 9, 2018 Directive, Complainant testified that she started receiving threatening text messages from telephone numbers that she did not recognize, which were not Respondent’s or Mr. Boyer’s, and prank telephone calls that sounded like a recording, but that a person breathing in the back ground could be heard.[11] 24. Complainant submitted the threatening text messages that she testified she had received from unknown numbers on July 12, 2018 at 12:12 a.m.,[12] July 14, 2018 at 12:12 a.m.,[13] 8:43 a.m.,[14] 9:22 a.m.,[15] and 10:16 p.m.,[16] and July 19, 2018, at 12:03 p.m.[17] Complainant testified that the texts misspelled her name the same way that Mr. Boyer did and that she believed he sent the texts because they started coming shortly after Investigator Nelsen issued the Directive. Complainant testified that she knew that Sammy Gravano, to whom two of the texts referred, was a mob boss. 25. Complainant testified that the texts scared her. She did not get out of her car except in the garage. She hired an attorney but did not allow Respondent or its subcontractors back to the jobsite. 26. Complainant submitted her July 19, 2018 email to Officer Derek Huenneke of the Chandler Police Department, attaching the text messages and requesting that the police investigate the threats.[18] Complainant testified that although she had a report number, she did not have a report because the Chandler Police Department does not release reports until its investigations are complete. 27. Mr. Boyer denied that he or anyone associated with Respondent ever sent the anonymous threatening texts from unknown telephone numbers to Complainant or ever made prank telephone calls. Mr. Boyer acknowledged that he had sent texts to Complainant threatening to refer her account to collections if she did not pay Respondent what she owed for the job, attempting to schedule repairs, and attempting to sell her other work. Mr. Boyer pointed out that these texts were legal. 28. Complainant testified that her pool maintenance company had told her that the whole filtration system in the pool would have to be replaced because of the excess concrete that Respondent left in the pool. She trusts her pool maintenance company.[19] 29. Because Investigator Nelsen no longer worked for the Registrar at the time of the hearing, Investigator Jim Dimond testified about the Registrar’s investigation, workmanship standards, and his observations at the jobsite. 30. Investigator Dimond performed a jobsite inspection on October 12, 2018. Investigator Dimond testified about the status of repairs on the seven items of the Directive on that date: 1. With respect to item #1, the broken Spanish tile, Inspector Dimond testified that the broken tile still was not corrected at the aerator at the south side of the pool and the step at the west end of the pool; 2. With respect to item #2, the cement stuck to the plaster in the bottom of the pool, Investigator Dimond testified that there was still concrete at the skimmer at the northeast corner of the pool floor; 3. With respect to item #3, the poor material used on the coping under the water feature, Investigator Dimond testified that Complainant had indicated Respondent had corrected the condition, with the exception of a small section where rocks were present; 4. With respect to item #4, the debris/cement left in various spots in the yard and decorative rock, Investigator Dimond testified that this item had been fully corrected; 5. With respect to item #5, the two broken fountain heads/three broken/missing white fountain heads, Investigator Dimond testified that this item had been corrected, but grout still needed to be removed from some of the fountain heads; 6. With respect to item #6, the damage to the two decorative pillars, Investigator Dimond testified the damage had been corrected, but that the pillars still needed to be painted; and 7. With respect to item #7, the exposed cement chunks and coping, Inspector Dimond testified that this item had been fully corrected. 31. Inspector Dimond testified that repairs were 95% complete and that he would characterize any remaining deficiencies as minor, punch-list items. 32. Investigator Dimond testified that although he guessed concrete could impact a filtration system if the concrete broke away and got through the skimmer basket and into the system, it was not likely. 33. Inspector Dimond testified that he did not inspect the wooden gate on the slide because it was not on the Directive and he did not have any specifications for the gate. CONCLUSIONS OF LAW 1. This matter lies within the Registrar’s jurisdiction.[20] 2. Complainant bears the burden of proof to establish cause to suspend or revoke Respondent’s license by a preponderance of the evidence.[21] Respondent bears the burden to establish factors in mitigation of the penalty and affirmative defenses by the same evidentiary standard.[22] 3. “A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.”[23] A preponderance of the evidence is “[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.”[24] 4. Because workmanship deficiencies remained on the job at the time of Investigator Dimond’s October 12, 2018 prehearing inspection, Complainant potentially established cause to suspend or revoke Respondent’s licenses under A.R.S. § 32-1154(A)(3),[25] namely A.A.C. R4-9-108.[26] 5. Construction is not a perfect art and, generally, contractors must be afforded an opportunity to correct their workmanship before their licenses may be suspended or revoked. As noted above, Complainant acknowledged that she did not allow Respondent access to perform any repairs, except for the day after the jobsite inspection, which was before the Directive was issued. Instead, Complainant argued that because the Registrar was created to protect the health and safety of members of the public in their dealings with contractors,[27] she was not required to provide access because she was frightened by the anonymous texts from unknown numbers that she submitted into evidence. 6. Complainant did not prove that Respondent sent the texts, however. Mr. Boyer credibly testified that neither he nor anyone at Respondent sent the texts or made prank phone calls to Complainant’s numbers. Therefore, Complainant did not establish cause to suspend or revoke Respondent’s contractor’s license under A.R.S. § 32-1154(A)(22).[28] RECOMMENDED ORDER Based on the foregoing, it is recommended that on the effective date of the final order in this matter, Complainant Suzanne M. DeRoock’s complaint against Respondent Gilbert Poolman LLC’s License Nos. ROC289980 and ROC309759 shall be dismissed. 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 five days from the date of that certification. Done this day, October 23, 2018.

/s/ Diane Mihalsky Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director Registrar of Contractors ----------------------- [1] See Complainant’s Exhibit 4. [2] Complainant’s Exhibit 7. [3] See Complainant’s Exhibit 19. [4] See Complainant’s Exhibit 1. [5] Complainant’s Exhibit 2. [6] See Complainant’s Exhibit 8 at SD044. [7] See the Registrar’s electronic file at Lg Citation1.pdf at 2; Complainant’s Exhibit 19. [8] See id. at SD054. [9] See id. at SD055. [10] See id. at SD057. [11] See Complainant’s Exhibit 24 (table of alleged prank calls received between July 13, 2018, and July 21, 2018). [12] The text is unsigned from the telephone number 480-900-4680, as follows: some folks just have to learn lessons in life the hard way. School is now in session. You have made some very bad choices. Your choices will have outcomes and these outcomes will not stop until you have made the right choice. Best wishes. Complainant’s Exhibit 9. [13] The text is unsigned from the telephone number 480-378-1145, as follows: Are you aware that in today’s digital technology it is quite easy to hack into anyone’s camera systems so that you can literally watch everything they are doing in their homes or around their homes? Did you know that this gives potential perpetrators the ability to know when you are coming and going from your home? Complainant’s Exhibit 10. [14] The text is unsigned from the telephone number 480-939-7256, as follows” You have chosen the next path yourself. Tell this to your family. Complainant’s Exhibit 11. [15] The text is unsigned from the telephone number 908-455-8842, as follows: Sammy the bull send his greetings and salutations Mrs. Derook. Complainant’s Exhibit 13. [16] The text is unsigned from the telephone number 541-937-7560, as follows: Nice to see your husbank is turning this into a game. Lets see if he thinks its so funny when we win. We don’t stop until we do. Lets take it to the next level. Complainant’s Exhibit 12. [17] The text is unsigned and from the telephone number 480-273-5280, shows a dark skinned man with dark hair wearing red goggles, a red bandanna around his forehead, and a black bandanna around the lower part of his face, as follows: Tick tock Samuel Gravano is about to set things right Bitch Tell your husband to keep his sense of humor. It’s not personal. It’s all business. Complainant’s Exhibit 14. [18] See Complainant’s Exhibit 26. [19] See Complainant’s Exhibit 31. [20] See A.R.S. § 32-1154(A). [21] See A.R.S. § 41-1092.07(G)(2); A.A.C. R2-19-119(B)(1); see also Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952). [22] See A.A.C. R2-19-119(B)(2). [23] Morris K. Udall, Arizona Law of Evidence § 5 (1960). [24] Black’s Law Dictionary at page 1220 (8th ed. 1999). [25] 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.” [26] 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.” [27] See Laws 1985, Ch. 334, § 1 (“The goals and objectives of the registrar of contractors are to protect the public health, safety and welfare by licensing, bonding and regulating contractors engaged in residential construction . . . .”); Burrows v. Taylor, 129 Ariz. 212, 214, 630 P.2d 35, 37 (Ct. App. 1981) (“[T]he Registrar is charged with the overall responsibility of protecting the welfare of the public dealing with persons engaged in the building contracting vocations and afford the public protection against incompetent, inexperienced, unlawful and fraudulent acts of building contractors.”). [28] A.R.S. § 32-1154(A)(22) includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, “[f]ailure 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.”

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