ALJDEC decisions subject to certification as final

2019A-00647-CHC-ROC · Registrar of Contractors · 2021-01-25

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Mitchell Evan Stevens,

COMPLAINANT

Desert Lifestyles Inc.,

License No. ROC 190993,

RESPONDENT

No. 2019A-00647-CHC-ROC

ADMINISTRATIVE LAW JUDGE

DECISION

HEARING: December 16, 2019 and January 5, 2021

APPEARANCES: Mitchel Evan Stevens on his own behalf; David Voss for Respondent

ADMINISTRATIVE LAW JUDGE: Thomas Shedden

FINDINGS OF FACT

On October 4, 2019, the Registrar of Contractors (“ROC”) issued a Notice of Hearing setting the above-captioned matter for hearing on November 6, 2019 at the Office of Administrative Hearings.

The Notice of Hearing shows that Respondent Desert Lifestyles Inc. is alleged to have violated Ariz. Rev. Stat. sections 32-1154(A)(3), (A)(9), (A)(12), and (A)(22).

Respondent holds license No. 190993 issued by ROC. Dave Campbell is Respondent’s president and David Voss is its construction manager.

Complainant is Mitchell Evan Stevens.

The matter was continued and was convened on December 16, 2019. On that date, ROC’s investigator Steve Lawton was called to testify, but neither party had questions for him. After Mr. Lawton was excused, the parties agreed to mediate their dispute.

A mediation was conducted and a tentative settlement was reached, but ultimately, Mr. Stevens requested that the matter be reset for hearing.

The matter was reconvened on January 5, 2021, at which time Messrs. Stevens, Voss and Campbell testified.

In December 2017, Mr. Stevens and Respondent entered a contract that called for Respondent to build a pool and spa at Mr. Stevens’s house.

On February 7, 2019, Mr. Stevens filed with ROC a complaint alleging poor work on Respondent’s part and setting out twenty-four allegations.

ROC investigator Mr. Lawton conducted a jobsite inspection on April 11, 2019 and a re-inspection on June 24, 2019.

On July 9, 2019, ROC issued to Respondent a Directive that provides in part:

*** You must provide the Registrar with satisfactory written proof of your compliance with this Directive prior to 5:00 p.m. on July 31, 2019.

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

1. Complaint Item 5: Spa has two leaks in the outer shell. Shell is too thin around spa.

Investigator’s Observation: It appears that there might be possible leaks in the spa area. Need to determine cause.

Governing Rule: Workmanship Rule: ARS 32-1154 (A) (3); Namely R4-9-108

2. Complaint Item 17: The wiring on the heat pump was wired incorrectly.

Investigator’s Observation: It appears that the heater is not functioning properly, possible miss wiring. Need to determine cause. All electrical circuits, controls, etc., should be installed to meet the requirements of the N.E.C. and local electrical codes.

Governing Rule: Workmanship Rule: ARS 32-1154 (A) (3); Namely R4-9-108

3. Complaint Item 18: The blower keeps blowing off the pipe.

Investigator’s Observation: It was observed at time of inspection that the blower line was blowing off. Need to determine cause. All electrical circuits, controls, etc., should be installed to meet the requirements of the N.E.C. and local electrical codes.

Governing Rule: Workmanship Rule: ARS 32-1154 (A) (3); Namely R4-9-108

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

(Underscoring added.)

ROC issued to Respondent a Citation dated September 4, 2019 through which it alleges that Respondent may have violated Ariz. Rev. Stat. sections 32-1154(A)(3), (A)(9), (A)(12), and (A)(22).

At the hearing, regarding complaint item number 5, Mr. Voss testified that the spa was not leaking, which had been demonstrated through pressure testing, and that the problem was that the spa was being overfilled and water was seeping under the coping.

Although Mr. Stevens disputed Mr. Voss’s testimony regarding the spa, his Exhibit 1 includes leak-detection test results from November 29, 2019 showing that there was no leak and recommending inspection of the pipe and pump sizes. Exhibit 1 also includes a January 6, 2020 quote for a number of tasks including repairing “leak at auto fill separation in grout” but it does not specify whether this is at the spa or the pool itself.

Regarding complaint item 17, Mr. Voss testified to the effect that the heater did not require correction, but rather that the issue was that the heater was being used to heat both the spa and the pool, which can be done in a manual mode, but not under the automatic setting; the automatic setting is for the spa only.

Mr. Stevens acknowledged that Respondent had had Pentair come look at the heater and that Respondent was correct regarding the automation issue. He also testified however that the wiring had not been corrected, that the improper wiring was causing the propane heater to turn itself on, and that Pentair told him that the unit had the wrong circuit board. In support of his position, Mr. Stevens’s exhibit 6 is an Estimate to provide equipment and perform a number of tasks, but does not show that the heater was miswired.

Regarding complaint item 18, the blower, Mr. Voss testified that the blower had been replaced, although it did not require replacement, and the pipe for the blower had been raised. Mr. Voss was of the opinion that this problem was related to the fact that the water level in the spa was too high (i.e., that the spa was being overfilled).

Mr. Stevens testified that the problem was related to vigorous vibrations that were occurring in the spa and that raising the blower did not resolve the problem. In support of his position, Mr. Stevens referred to his exhibits 3 and 6.

Mr. Stevens’s exhibit 6, which is dated January 21, 2019, shows that the blower should be raised by two feet so that “water and back pressure does not blow the blower off.”

Mr. Lawton’s jobsite inspection notes show that on June 24, 2019, he could not verify that the spa was shaking or vibrating, which allegations were complaint item 12.

Mr. Stevens’s exhibit 1 shows that the spa does shake vigorously.

Mr. Voss acknowledged that the spa shakes and testified to the effect that Respondent was going to correct that issue when performing work that the parties had agreed to during the mediation, but Mr. Stevens requested that the matter be reconvened before that work could be undertaken.

CONCLUSIONS OF LAW

Unless otherwise provided by law, a party asserting a claim, right, or entitlement bears the burden of proof; a party asserting an affirmative defense has the burden of establishing the affirmative defense. The standard of proof on all issues in this matter is that of a preponderance of the evidence. Ariz. Admin. Code § R2-19-119.

“At a hearing on an agency action to suspend, revoke, terminate or modify on its own initiative material conditions of a license or permit, the agency has the burden of persuasion.” Ariz. Rev. Stat. § 41-1092.07(G)(2).

“At a hearing on an agency's imposition of fees or penalties or any agency compliance order, the agency has the burden of persuasion.” Ariz. Rev. Stat. § 41-1092.07(G)(3).

A preponderance of the evidence is:

The 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.

Black’s Law Dictionary 1373 (10th ed. 2014).

Statutes should be interpreted to provide a fair and sensible result. Gutierrez v. Industrial Commission of Arizona, 226 Ariz. 395, 249 P.3d 1095 (2011)(citation omitted); State v. McFall, 103 Ariz. 234, 238, 439 P.2d 805, 809 (1968) ("Courts will not place an absurd and unreasonable construction on statutes.").

“Statutes shall be liberally construed to effect their objects and to promote justice.” Ariz. Rev. Stat. § 1-211(B).

The purpose of the Registrar’s licensing statutes is to protect the public from unscrupulous, unqualified, and financially irresponsible contractors. See Aesthetic Property Maintenance v. Capital Indem. Corp., 183 Ariz. 74, 900 P. 2d 1210 (1995).

The scope of the hearing is limited to the issues properly noticed. See Ariz. Rev. Stat. § 41-1092.07(F)(6).

Communications made during mediations are confidential. See Ariz. Rev. Stat. § 12-2238.

The Administrative Law Judge may consider ROC’s administrative record. See Ariz. Admin. Code § R4-9-118.

Ariz. Rev. Stat. section 32-1154(A) provides that:

The holder of a license or any person listed on a license pursuant to this chapter shall not commit any of the following acts or omissions:

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3. Violation of any rule adopted by the registrar.

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9. Attempting to evade this chapter by:

(a) Aiding or abetting a licensed or unlicensed person.

(b) Acting or conspiring with a licensed or unlicensed person.

(d) Acting as agent, partner, associate or otherwise of a licensed or unlicensed person.

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12. Failure in any material respect to comply with this chapter.

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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. The time permitted for compliance shall not be less than fifteen days from the date of issuance of the directive. A license shall not be revoked or suspended nor shall any other penalty be imposed for a violation of this paragraph until after a hearing has been held.

Ariz. Admin. Code section R49108(A) provides that “A contractor shall perform all work in a professional and workmanlike manner.”

Ariz. Rev. Stat. section 32-1154(E) provides that ROC may impose a civil penalty of not to exceed five hundred dollars on a contractor for each violation of Ariz. Rev. Stat. section 32-1154(A)(22).

There was no substantial evidence adduced showing that Respondent has violated Ariz. Rev. Stat. sections 32-1154(A)(9), (A)(12) or (A)(22).

It has not been shown that the spa leaked or that the heater was improperly wired (complaint items 5 and 17). The preponderance of the evidence does show that the blower required repair, which Respondent had completed by the date of the hearing.

Because the blower line required a repair, there is sufficient evidence to show that Respondent violated Ariz. Admin. Code section R4-9-108, which is a violation of Ariz. Rev. Stat. section 32-1154(A)(3). Nevertheless, considering that Respondent has repaired the blower, it is appropriate to dismiss this matter without imposing discipline against Respondent’s license.

RECOMMENDED ORDER

IT IS ORDERED that case number 2019-00647 is 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 is forty days after the date of that certification.

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-137160-45720000Done this day, January 25, 2021.

/s/ Thomas Shedden

Thomas Shedden

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors

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-137160-45720000