ALJDEC decisions subject to certification as final

2018A-3695-ROC · Registrar of Contractors · 2019-05-20

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: April 30, 2019 APPEARANCES: Complainant Gerrie Lee Fahay appeared on her own behalf. Jesus Salazar, Owner and Qualifying Party, appeared on behalf of Respondent Jecrisa Pool Plastering LLC doing business as Jecrisa Pool Construction. ADMINISTRATIVE LAW JUDGE: Tammy L. Eigenheer _____________________________________________________________________ FINDINGS OF FACT Jecrisa Pool Plastering LLC doing business as Jecrisa Pool Construction (Respondent) is the holder of License Nos. 303094 and 264712 issued by the Arizona Registrar of Contractors (Registrar). On or about March 28, 2018, Gerri Lee Fahay (Complainant) signed a contract with Respondent to refinish her swimming pool for a total cost of $6300.00. On or about August 10, 2018, the Registrar received a Complaint against Respondent from Complainant alleging poor work with respect to the project.

The Registrar assigned the complaint to Investigator Steve Lawton. On or about September 25, 2018, after the jobsite inspection, Investigator Lawton issued a written directive to Respondent that provided 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 09/16/2018.

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

1. Compliant Item 2: Plaster has stains from the texture paint in some areas. Deck Investigator’s Observation: It was observed that there are stains in the plaster from the deck work completed by the Respondent. 2. Complaint Item 3: Tile grout has texture paint stains in some areas. Investigator’s Observation: It was observed that there decking stains in the grout from deck remodel. 3. Compliant Item 4: New texture doesn’t blend with existing as told would be 90% (Deck). Investigator’s Observation: It was observed that the troweling did not blend on the deck. Compliant Item 5: Tile and grout not done correctly. 4. Investigator’s Observation: It was observed that there are areas that did not match throughout the tiled areas. 5. Compliant Item 6: Texture around pool has spots missing. Deck Investigator’s Observation: Substantiated. 6. Compliant Item 7: Texture paint around pool missing in some areas. Deck Investigator’s Observation: It was observed that there are areas of the deck are missing texture. 7. Compliant Item 8: Texture drippings hand off bottom edges in some areas-not cleaned. Investigator’s Observation: It was observed that the curb side of the deck has unfinished edge of the deck. 8. Compliant Item 9: Texture drippings along ledges-some stuck to deck and rocks in the landscape areas-can’t break off or would break of edge of the deck. Investigator’s Observation: It was observed that deck texture has not been cleaned up in landscaping areas. 9. Compliant Item 10: Plaster pieces left in rock and landscape around the pool. Investigator’s Observation: Substantiated. 10. Compliant Item 11: Tape (blue) sticking out where they plastered and never removed. Investigator’s Observation: Substantiated.

The Registrar has determined that any workmanship violations alleged in the complaint but not listed above are unsubstantiated and do not require corrective action.

All errors in original. Following the issuance of the written directive, Respondent did not perform any corrective work. After the deadline in the directive expired, Investigator Lawton was notified no corrective work had been performed. The Registrar issued a Citation against Respondent, charging possible violations of A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108; and A.R.S. § 32-1154(A)(22). Investigator Lawton testified as to his observations of the project and the issuance of the directive. Complainant testified that she sent multiple text messages to Respondent attempting to get the corrective work completed prior to filing the complaint, but Respondent did not fix the issues. Complainant indicated that as time passed, she kept seeing more things that needed to be repaired. Complainant denied that Respondent attempted to contact her after the directive was issued and before the deadline expired. Jesus Salazar, Owner and Qualifying Party, testified that he had tried to get a representative to come look at the staining in the pool finish to determine what could be done to fix it, but was unable to arrange such a meeting. Mr. Salazar asserted that he kept trying to contact Complainant to complete the repairs, but according to the text chain he showed the Administrative Law Judge in the hearing, Mr. Salazar did not sent any text messages to Complainant between September 20, 2018, and December 7, 2018. Administrative notice is taken of Respondent’s prior License record on May 19, 2019. Such prior License record reflects that Respondent’s License No. 303094 was first issued on February 25, 2016, and is current with no other prior complaints against Respondent’s license. Such prior License record also reflects that Respondent’s License No. 264712 was first issued on September 16, 2010, and is current with no complainants against Respondent’s license. CONCLUSIONS OF LAW 1. This matter lies within the Registrar’s jurisdiction. See A.R.S. § 32- 1101 et seq. 2. Complainant bears the burden of proof to establish Respondent’s statutory violations by a preponderance of the evidence. See A.R.S. § 41-1092.07(G)(2); 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). “A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.” Morris K. Udall, Arizona Law of Evidence § 5 (1960). 3. The evidence established that Respondent’s work was not in conformity with the Registrar’s standards. Therefore, Complainant established that Respondent did not complete the project in a workmanlike manner in violation of A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108.[1] 4. The evidence established that Respondent did not attempt to compete the corrective work following the Directive being issued prior to the deadline in the Directive. Therefore, Complainant established that Respondent failed to take appropriate corrective action following a written directive from the Registrar in violation of A.R.S. § 32- 1154(A)(22).[2] RECOMMENDED ORDER Based on the foregoing, it is recommended that on the effective date of the Order, the Registrar shall suspend Respondent’s License No. 303094 for a period of three days. It is further recommended that the Registrar require Respondent to pay the sum of $500.00 as a civil penalty pursuant to A.R.S. § 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 A.R.S. § 32-1101(A)(5), unless Respondent tenders payment of any outstanding prior civil penalty. 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 40 days from the date of that certification. Done this day, May 20, 2019.

/s/ Tammy L. Eigenheer Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director Registrar of Contractors

----------------------- [1] 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.” [2] 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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Office of Administrative Hearings 1740 West Adams Street, Lower Level Phoenix, Arizona 85007 (602) 542-9826