FINACT2019A-01799-ROC.pdf

2019A-01799-CHC-ROC · Registrar of Contractors · 2019-12-04

REGISTRAR OF CONTRACTORS OF THE STATE OF ARIZONA

Robert Canfield, Case No. 2019-01799 COMPLAINANT, Docket No. 2019A-01799-CHC-ROC v. Arizona Hydro Pro Carpet Clean LLC, FINAL ADMINISTRATIVE DBA: Arizona Hydro Pro Construction, DECISION AND ORDER License No. ROC 164639,

RESPONDENT.

Under A.R.S. § 41-1092.08(B), the Registrar may review and accept, modify, or reject an administrative law judge’s written decision. If the Registrar modifies or rejects that decision, then the Registrar must provide written justification setting forth the reasons for the modification or rejection of each finding of fact or conclusion of law. REGISTRAR’S ACCEPTANCE In this case, a hearing was held, and the administrative law judge issued a written decision. See Administrative Law Judge Decision, attached. The Registrar reviewed that decision and accepts it. CONCLUSION AND ORDER Because the Registrar has accepted the administrative law judge’s decision, that decision is the final administrative decision in this case and becomes effective on January 12, 2020.

of 2 REGISTRAR OF CONTRACTORS 1700 W. Washington St.– Ste. 105 – Phoenix, AZ 85007-2812 Telephone (602)542-1525 Toll Free (877)692-9762 Lg131 8/19 Dated December 3, 2019. By: /s/ _Joseph Citelli____________________ Joseph Citelli Chief Counsel Legal Department Arizona Registrar of Contractors Copy mailed via USPS First Class mail December 3, 2019 to: Respondent Arizona Hydro Pro Carpet Clean LLC DBA: Arizona Hydro Pro Construction 14212 N 57th Way Scottsdale, AZ 85254 Complainant Robert Canfield 13833 N 37th Way Phoenix, AZ 85032 Copy sent electronically this same date to: Office of Administrative Hearings Thomas Shedden, Administrative Law Judge Respondent at email address on record with the Registrar Complainant at email address on record with the Registrar Case No. 2019-01799 / DU

of 2 REGISTRAR OF CONTRACTORS 1700 W. Washington St.– Ste. 105 – Phoenix, AZ 85007-2812 Telephone (602)542-1525 Toll Free (877)692-9762 Lg131 8/19 RECEIVED 11.25.2019 ROC LEGAL

OAH ALJ Recommendations - AZROC <[email redacted]>

New ALJ Decision transmitted for ROC (2019A-01799-CHC-ROC) message

OAH Electronic Decision Transmission System <[email redacted]> Mon, Nov 25, 2019 at 2:09 PM To: [email redacted]

This is a message from the Arizona Office of Administrative Hearings to inform you that a decision has been transmitted for Registrar of Contractors. The details are as follows:

Decision type: ALJ Decision Matter ID: 2019A-01799-CHC-ROC Filed by: OAH Filed on: 11/25/2019 Due Date for Final Agency Action (if applicable): 12/30/2019

You may access this decision at https://portal.azoah.com/aljdec/documents/ROC/2019A-01799-CHC-ROC-ALJDecision- 6647.pdf.

To view all available ALJ decisions, visit https://portal.azoah.com/aljdec/documents/ROC/. RECEIVED 11.25.2019 ROC LEGAL

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Robert Canfield, No. 2019A-01799-CHC-ROC COMPLAINANT v. ADMINISTRATIVE LAW JUDGE Arizona Hydro Pro Carpet Clean LLC, DECISION DBA: Arizona Hydro Pro Construction, ROC License: ROC 164639, RESPONDENT

HEARING: November 7, 2019 APPEARANCES: Eric Childs, Esq. for Complainant; Ray Odom Jr. for Respondent ADMINISTRATIVE LAW JUDGE: Thomas Shedden

FINDINGS OF FACT

1. On September 17, 2019, the Registrar of Contractors (“ROC”) issued a NOTICE OF HEARING ON CONTESTED CASE setting the above-captioned matter for hearing on October 21, 2019 at the Office of Administrative Hearing. The matter was continued and the hearing was conducted on November 7, 2019. 2. The hearing was set to consider the charges made in the complaint and citation that were served on Respondent Arizona Hydro Pro Carpet Clean LLC, d.b.a. Arizona Hydro Pro Construction.1 ROC alleges that Respondent violated ARIZ. REV STAT. sections 32-1154(A)(3)(R4-9-108) and 32-1154(A)(22). 3. Respondent holds license No. 164639 issued by ROC. Raymond Odom Jr. is Respondent’s qualifying party and a member of the LLC. Complainant is Robert Canfield. 4. In or about August 2017, Mr. Canfield bought a house from an LLC in which Mr. Odom is also a member. Mr. Canfield was represented by a licensed salesperson and is himself licensed in Idaho. Mr. Canfield did not have any inspections done, and was taking the house as-is. 5. The pool was old. Before the house was sold, Respondent applied to the pool a product called Outside Seal made by Sun Ray chemicals. Through a clerical error, the Notice does not include the date on which these were served. Office of Administrative Hearings 1740 West Adams Street, Lower Level Phoenix, Arizona 85007 (602) 542-9826 RECEIVED 11.25.2019 ROC LEGAL

6. The product was designed to seal Saltillo tile, but a letter from Sun Ray shows that it has been used successfully in pools for thirty-four years. 7. The product is a tint-able sealant that is applied to give the plaster a

uniform color, but it also fills the pores and stops algae from growing.

8. There are two areas of the pool from which the product is peeling.

9. Mr. Canfield (and his wife) filed with ROC a complaint on April 10, 2019, in

which they alleged that the pool plaster was wearing off.2

10. Mr. Canfield’s asserts that Respondent is responsible to repair the

spalling plaster and that Respondent represented that the product would last for ten

years.

11. Respondent is willing to repair the peeling product, but the product will not

stop the plaster from spalling because it is not designed to do so. The product is

warrantied for ten years, but only for its intended purpose.

12. ROC Investigator Steve Klein conducted a jobsite investigation on May

30, 2019.

13. On June 14, 2019 ROC issued to Respondent a DIRECTIVE that required

Respondent to remedy by appropriate means: Complaint Item 1: Pool Plaster is wearing off and was told it would be good for 10 years.

Pool plaster is existing, coated by another material which is peeling mostly at the deep end and a large area on the side.

14. The DIRECTIVE shows that ROC had determined that any other workmanship violations alleged in Mr. Canfield’s complaint were unsubstantiated. 15. The DIRECTIVE required Respondent to provide ROC with written proof that he had made the required corrections by no later than 5:00 p.m. July 4, 2019. 16. Through a July 1, 2019 email to Mr. Odom, Mr. Springer confirmed that ROC was only ordering Respondent to reseal the areas that were peeling.

They also raised four other workmanship issues that were fixed by Respondent and are not part of this hearing. RECEIVED 11.25.2019 ROC LEGAL

17. Respondent was willing to make the required repair, but the pool must be drained to do so, and the pool should not be drained until midwinter when temperatures drop below 90 degrees. Consequently, ROC’s July 4th deadline for repair was not

reasonable, which Mr. Klein acknowledged during the hearing.

18. In correspondence dated July 3, 2019, Mr. Odom informed Mr. Canfield

that ROC had confirmed that Respondent was to recoat only the deep end and the

side. He explained that it must be below 90 degrees before the repair could be made.

He opined that the plaster was beyond its expected life and that the average life is

fifteen years. He offered to drain the pool and reseal those two areas without offering

any additional warranty considering the age of the plaster, or in the alternative to make

a payment to Mr. Canfield of $500.

19. Mr. Canfield declined Respondent’s offer.

20. ROC issued to Respondent a citation on July 31, 2019 alleging that

Respondent may have violated ARIZ. REV. STAT. sections 32-1154(A)(3)(R4-9-108) and

(A)(22).

21. Respondent filed an answer showing its understanding that it was not

required to re-plaster the pool, expressing its willingness to make the repairs ordered by ROC when the weather was appropriate, and explaining that the house was purchased as-is and Mr. Canfield did not have any inspections done. 22. At the hearing, Mr. Canfield confirmed that his position is that Respondent must re-plaster the pool and he asserted that this is what ROC required in its DIRECTIVE. But Mr. Klein’s testimony shows that Respondent was only ordered to reseal the peeling parts, which is also what Mr. Klein wrote in his July 1, 2019 email to Mr. Odom. 23. Mr. Canfield makes reference to conversation with his licensed agent and representations he asserts the agent says that Respondent made, but this hearsay cannot be accorded any appreciable weight. 24. Mr. Odom testified as to Respondent’s willingness to make the required repair, but expressed concern about the state of the pool’s plaster, and his opinion that the appropriate time to do so would be in January. RECEIVED 11.25.2019 ROC LEGAL

25. Mr. Odom affirmed that there is a ten year warranty on the sealant, but not the pool plaster.

CONCLUSIONS OF LAW

1. 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.

2. “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).

3. “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).

4. 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). 5. 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."). 6. “Statutes shall be liberally construed to effect their objects and to promote justice.” ARIZ. REV. STAT. § 1-211(B). 7. 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).

RECEIVED 11.25.2019 ROC LEGAL

8. The Administrative Law Judge may consider ROC’s administrative record. See ARIZ. ADMIN. CODE § R4-9-118. 9. 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: ***** 3. Violation of any rule adopted by the registrar. ***** 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.

10. ARIZ. ADMIN. CODE section R4-9-108(A) provides that “A contractor shall perform all work in a professional and workmanlike manner.” 11. 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). 12. The preponderance of the evidence shows that there are two areas of the pool that needed to be sealed again. This is a violation of ARIZ. ADMIN. CODE section R4-9-108(A) and Ariz. Rev. Stat. section 32-1154(A)(3). Respondent accepts responsibility and is prepared to reseal those areas, which is what ROC ordered Respondent to do, but it is not appropriate to make the repairs until midwinter. 13. Mr. Canfield asserts that Respondent must replace the plaster, but he has not proven that Respondent bears any responsibility for the condition of the plaster, either factually or as a legal matter.

RECEIVED 11.25.2019 ROC LEGAL

14. The preponderance of the evidence shows that ROC did not allow Respondent a reasonable amount of time to make the repairs ROC ordered it to make, because it would not have been appropriate to make the repairs during June or July.

Consequently, although Respondent did not comply with ROC’s DIRECTIVE within the

time ordered, its failure to do so was justified and Respondent has not violated ARIZ.

REV. STAT. section 32-1154(A)(22).

15. Although Respondent has violated Ariz. Rev. Stat. section 32-1154(A)(3),

considering the facts and circumstances of this matter, no discipline should be imposed

on Respondent’s license and Mr. Canfield’s complaint should be dismissed. Facts in

support of this conclusion include Respondent’s willingness to make the repairs ROC

ordered it to complete and Mr. Canfield’s insistence on a solution (re-plastering) that is

not supported by the facts or the law.

16. ROC’s website shows that Respondent has been licensed since May 3,

2001 and it has no prior disciplinary infractions, which is a factor in mitigation.

17. Consequently, this matter should be dismissed.

RECOMMENDED ORDER IT IS ORDERED that on the effective date of the final ORDER in this matter, case number 2019-01799 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. Done this day, November 25, 2019.

/s/ Thomas Shedden Thomas Shedden Administrative Law Judge

Transmitted electronically to: Jeffrey Fleetham, Director Registrar of Contractors