ALJDEC decisions subject to certification as final

2019A-00572-CHC-ROC · Registrar of Contractors · 2020-03-12

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Kirk William Miles,

COMPLAINANT,

v.

Advantage Pool and Spa Plumbing Inc.,

ROC License: ROC 188584, 166057,

RESPONDENT.

No. 2019A-00572-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: February 21, 2020

APPEARANCES: Complainant Kirk William Miles appeared on behalf of himself. Robert Scheller appeared on behalf of Respondent Advantage Pool and Spa Plumbing, Inc.

ADMINISTRATIVE LAW JUDGE: Velva Moses-Thompson

_____________________________________________________________________

FINDINGS OF FACT

Respondent Advantage Pool and Spa Plumbing, Inc. (Advantage) holds license numbers 188584 and 166057, issued by the Arizona Registrar of Contractors (Registrar).

Robert Scheller is the qualifying party for Advantage.

On or about November 11, 2016, Complainant Kirk William Miles and Advantage entered into a contract wherein Advantage would install a pool and deck on Mr. Miles’s property (contract).

The contract did not include language that advised Mr. Miles of his right to

file a complaint with the Registrar against Advantage for an alleged violation of Ariz. Rev. Stat. section 32-1154(A) within the time allowed by Ariz. Rev. Stat. section 32-1155(B).

On or about November 23, 2016, Advantage started work.

On or about October 29, 2018, Advantage stopped work.

On or about February 4, 2019, the Registrar received a complaint from

Mr. Miles alleging poor workmanship on the part of Advantage.

On or about March 25, 2019, Registrar Investigator Cliff Corlett conducted

a jobsite inspection. Investigator Corlett was unable to substantiate any of the complaint items.

On April 8, 2019, the Investigator Corlett closed the February 4, 2019

complaint.

Mr. Miles subsequently requested that the case be reopened based on

seven new allegations.

On or about August 21, 2019, the Registrar reopened the complaint.

On or about September 13, 2019, Investigator Corlett conducted a jobsite

inspection.

On September 26, 2019, Investigator Corlett issued a Directive. Through

the Directive, the Registrar notified Advantage that its work failed to meet minimum workmanship standards because the pool was not within the plus or minus 3-inch tolerance allowed when compared with the original pool contract dimensions and the revised pool dimensions. Through the Directive, the Registrar directed Advantage to correct the deficient item by appropriate means on or before October 14, 2019.

On October 25, 2019, Investigator Corlett conducted a compliance job site

inspection and found that Advantage had not complied with the Registrar’s September 26, 2019 Directive.

On October 31, 2019, the Registrar issued a Citation that contained allegations that Advantage may have violated A.A.C. Rule 4-9-108 and Ariz. Rev. Stat. section 32-1154(A)(3); Ariz. Rev. Stat. section 32-1154(A)(12), (A)(22); and Ariz. Rev. Stat. section 32-1158. The Citation shows that if the Administrative Law Judge finds that any of the alleged charges are valid, the Registrar may suspend or revoke Advantage’s license.

Advantage filed a timely appeal to the Citation.

The matter was referred to the Office of Administrative Hearings for an

evidentiary hearing.

At hearing, Respondent did not dispute that the pool was not built within a

3-inch tolerance in regards to the original or revised pool dimension drawings. Respondent asserted that Mr. Miles wanted his pool to be bigger and approved the larger dimensions. Mr. Scheller explained that he painted the dimensions on Mr. Miles’s yard and that Mr. Miles approved. However, Mr. Scheller did not provide Mr. Miles with written measurements and plans.

Mr. Miles testified that he agreed with the concept but not the actual

dimensions.

CONCLUSIONS OF LAW

This matter lies within the Registrar’s jurisdiction. See A.R.S. § 32-1101 et seq.

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 a preponderance of the evidence. See A.A.C. R2-19-119.

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).

4. The preponderance of the evidence shows that the issues found by Investigator Corlett demonstrate that Advantage failed to install the pool in a

in a professional and workmanlike manner in violation of Ariz. Rev. Stat. section 32-1154(A)(3), namely A.A.C. R4-9-108.

5. The preponderance of the evidence shows that Respondent failed to

correct the items listed in the Registrar’s Directive without valid justification, which is a violation of Ariz. Rev. Stat. section 32-1154(A)(22).

6. The undisputed evidence established that the contract did not include a statement that the property owner has the right to file a written complaint with the Registrar for alleged violations of Ariz. Rev. Stat. section 32-1154(A).

7. The preponderance of the evidence showed that Advantage violated Ariz. Rev. Stat. section 32-1154(A)(12), namely Ariz. Rev. Stat. section 32-1158(A).

RECOMMENDED ORDER

Based on the foregoing, it is recommended that on the effective date of the Order, the Registrar shall suspend Advantage Pool and Spa Plumbing Inc., ROC License: Nos. 188584, 166057, for three days.

It is further recommended that the Registrar require Respondent to pay the sum of $500.00 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 A.R.S. § 32-1101(A)(7), unless Respondent tenders payment of any outstanding prior civil penalty.

Done this day, March 12, 2020.

/s/ Velva Moses-Thompson

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors