ALJDEC decisions subject to certification as final

2019A-00572-RFA-LS-ROC · Registrar of Contractors · 2023-03-30

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Kirk William Miles,

COMPLAINANT

Advantage Pool and Spa Plumbing Inc.,

DBA: Advantage Pools,

License No. ROC 188584,

RESPONDENT

No. 2019A-00572-RFA-LS-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: January 23, 2023, and March 7, 2023

APPEARANCES: Complainant Kirk William Miles appeared on his own behalf. Robert Scheller, Owner and Qualifying Party, appeared on behalf of Respondent Advantage Pool and Spa Plumbing Inc., doing business as Advantage Pools, which was represented by William Richards. The Arizona Registrar of Contractors was represented by Assistant Attorney General Seth T. Hargraves.

ADMINISTRATIVE LAW JUDGE: Tammy L. Eigenheer

_____________________________________________________________________

FINDINGS OF FACT

The Arizona Registrar of Contractors (Registrar) issued License No. 188584 to Respondent Advantage Pool and Spa Plumbing Inc., doing business as Advantage Pools.

On or about February 4, 2019, the Registrar received a Complaint against Respondent from Complainant alleging that the pool plaster was the wrong color and other claims.

During the initial investigation of the complaint, the investigator found that no violations of the Registrar’s standards existed.

On or about August 21, 2019, Complainant amended the complaint to include that the pool, as built, was not the size it was in the approved drawings and plans. According to the updated drawings, the pool was supposed to be 40 feet in length and 20 feet across at the two widest points. Attached to the amendment was an email to Complainant from Pool Biz that included measurements it took of Complainant’s pool. The email noted the following measurements:

Pool Perimeter: 103’

Spa Perimeter: 25’

Pool Length at longest: 38.5’

Largest width: 20’ across deep end

2nd largest width: 18’2” across table/seating area.

As a result of the workmanship complaint, 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; A.R.S. § 32-1154(A)(12), namely A.R.S. § 32-1158; and A.R.S. § 32-1154(A)(22).

Respondent filed a timely answer to the Citation. An administrative hearing was held. In her March 12, 2020 Decision, Administrative Law Velva Moses-Thompson Respondent’s arguments and concluded that Respondent violated the statutes charged in the citation.

On March 25, 2020, the Registrar issued a Final Administrative Decision and Order finding the violations and imposing a three-day suspension.

Complainant then filed a claim with the Residential Contractors’ Recovery Fund (the Fund) to recover the cost of altering the pool to be the size agreed to in the contract. As part of the claim process, Complainant submitted bids from three different contractors that Complainant had received to correct the project.

The Registrar issued a Notice of Claim for Administrative Payout, finding that Complainant’s actual damages were $26,500.00. Respondent requested a hearing, believing the payout was too high. Complainant did not contest the amount of the administrative payout. The Registrar referred the matter to the Office of Administrative Hearings (OAH) for an evidentiary hearing.

Hearing was held on January 23, 2023, and March 7, 2023.

At hearing, Respondent questioned Complainant’s intent to occupy the property as his primary residence and the reasonableness of the payout.

At hearing, Complainant testified that it was his intention to retire within five years and move to the Lake Havasu City property as his primary residence at that time. Complainant stated he may retire earlier than that, but he was uncertain of the exact timing. Complainant also noted that the size of the pool was smaller than the updated plans and he considered the size to be a safety hazard. Complainant stated he called Pool Biz to examine the pool because he had hired them to start-up and maintain his pool. While Complainant agreed that he wanted a freeform pool, he maintained the sizes on the updated drawings were important to him.

Investigator Cliff Corlett testified that the pool, as built was not in compliance with the Registrar’s workmanship standards. Investigator Corlett indicated that he did not take the second width measurement, so he was unable to confirm or deny the accuracy of the Pool Biz measurement. Investigator Corlett offered his personal opinion that he thought the ultimate issue for Complainant was the color of the finish and that he believed the parties could have or should have resolved the matter through other means. However, Investigator Corlett admitted that he should not have included the following statement in the written directive: “It would be impractical at this point to alter the pool and this would be better resolved between the parties or in a different legal forum.” Investigator Corlett stated that, in his opinion, there was nothing wrong with the pool installation itself, but the size was not in accordance with the Registrar’s standards.

Mr. Scheller testified that the award from the Fund was excessive to correct the three inch difference in pool size documented by Investigator Corlett. Mr. Scheller also questioned the scope of the work in the bid used to calculate the award as it was not itemized. Mr. Scheller argued that there was nothing wrong with the pool functioning.

Respondent’s counsel asserted that the statutes governing administration of the Fund should not be read to mean that a party could intend to reside in the residence at some point in the future. Respondent’s counsel also argued that, because there had been three separate lawsuits in civil court, an award from the Fund was precluded under a theory of res judicata.

The Registrar’s counsel asserted that the statutes governing administration of the Fund do not provide a timeframe by which a person must intend to occupy the residence as their primary residence, and as such, it would be improper for the Registrar to set a timeframe. Counsel also argued that the civil cases in this matter had not adjudicated whether the size of the pool was in conformity with the contract. Further, counsel asserted that nothing in the Registrar’s statutes would have precluded Complainant from accessing the Fund even if the size of the pool had been adjudicated. Counsel further noted that Respondent did not provide any evidence of what an appropriate cost to repair the issue would be, and only set forth the argument that it disagreed with the payout.

CONCLUSIONS OF LAW

This matter lies within the Registrar’s jurisdiction.

A.R.S. § 32-1132(A) provides that “[a]n award from the fund is limited to the actual damages suffered by the claimant as a direct result of the contractor's violation but shall not exceed an amount necessary to complete or repair a residential structure or appurtenance within residential property lines. . . .” The Registrar bears the burden of proof to establish that the proposed payout from the Fund is correct by a preponderance of the evidence.

“A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.” 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.”

After review of all the evidence, the Tribunal concludes that Complainant is eligible to access the Fund because he intends to occupy the residence as his primary residence.

Further, the award provided by the Fund accurately reflected Complainant’s actual damages based on the bids submitted and the outstanding balance owed on the contract with Respondent. Accordingly, Complainant is accordingly entitled to a payout from the Fund in the amount of $26,500.00.

RECOMMENDED ORDER

Based on the foregoing, it is recommended that on the effective date of the Registrar’s final order, Complainant receive a payout from the Residential Contractors’ Recovery Fund in the amount of $26,500.00.

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 forty (40) days from the date of that certification.

-54864001

001

-137160-45720000Done this day, March 30, 2023.

/s/ Tammy L. Eigenheer

Administrative Law Judge

Transmitted by either mail, e-mail, or facsimile to:

Martín Quezada, Director

Registrar of Contractors

Seth T. Hargraves

Office of the Attorney General

[email redacted]

Kirk William Miles

[email redacted]

William R. Richardson, Esq.

Richardson & Richardson, PC

[email redacted]

By: OAH Staff