ALJDEC decisions subject to certification as final

2019A-03102-CHC-ROC · Registrar of Contractors · 2020-06-25

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Steven Terry Blanco,

COMPLAINANT,

v.

Endless Summer Swimming Pool Construction Inc.,

DBA: Endless Season Pool Construction,

License No. ROC 221919,

RESPONDENT.

No. 2019A-03102-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: June 5, 2020, at 1:00 p.m.

APPEARANCES: Steven Terry Blanco (“Complainant”) appeared on his own behalf; Endless Summer Swimming Pool Construction Inc. DBA: Endless Season Pool Construction (“Respondent”) appeared through its authorized employee, Jessie Petti.

ADMINISTRATIVE LAW JUDGE: Diane Mihalsky

_____________________________________________________________________

FINDINGS OF FACT

The Arizona Registrar of Contractor’ (“the Registrar”) referred this matter to the Office of Administrative Hearings, an independent state agency, for an evidentiary hearing. Complainant, Respondent’s authorized employee, Jessie Petti, and the Registrar’s assigned Investigator Chris Fultz testified.

According to the Registrar’s public website, on or about July 12, 2006, the Registrar issued License No. ROC 221919 for General Residential B-5 General Swimming Pool contracting to Respondent.

On or about June 17, 2019, Complainant filed a complaint with the Registrar against Respondent that alleged that it performed poor work in its contract to remodel the pool at Complainant’s house at 10809 N. 54th Circle, Glendale, Arizona. The date of the parties’ contract was February 20, 2018.

Investigator Fultz performed a jobsite inspection on August 8, 2019, which both parties attended. Respondent’s representative promised to be out within a few months to rectify poor workmanship and Complainant agreed to allow Respondent to do so. On September 4, 2019, Investigator Fultz sent a letter to the parties, informing them that he was closing the complaint due to their settlement.

Several months passed. Complainant contacted Investigator Fultz to tell him that Respondent was not making any progress on the promised repairs.

On January 15, 2020, Investigator Fultz performed a second jobsite inspection. Investigator Fultz testified that Respondent did not attend the second inspection and that the condition of the jobsite was unchanged from his August 8, 2019 inspection.

On February 27, 2020, Investigator Fultz on behalf of the Registrar issued a Directive, requiring Respondent to correct and complete the project on or before 5:00 p.m. on March 20, 2020, in relevant part as follows:

Compliance Item: 1 - Decking separated from tile around the entire pool. Investigator’s Observation: The decking and tile have begun to separate. This issue will need to be repaired by appropriate means. Governing Rule: Violation of any rule adopted by the Registrar; Namely A.A.C. R4-9-108(a): A contractor shall perform all work in a professional and workmanlike manner.

Compliance Item: 2 - After damage the leak was fixed but the decking that was cut out was never replaced. Investigator’s Observation: The repair patch has not been completed in its repair and needs to be finished. Governing Rule: Violation of any rule adopted by the Registrar; Namely A.A.C. R4-9-108(a): A contractor shall perform all work in a professional and workmanlike manner.

Compliance Item: 4 - Suction line in the pool for sweep never worked properly. Investigator’s Observation: The suction line will need to be completed as per contract. Governing Rule: Violation of any rule adopted by the Registrar; Namely A.A.C. R4-9-108(a): A contractor shall perform all work in a professional and workmanlike manner.

Compliance Item: 5 - Decking cracks were never repaired as promised and are now no longer minor repairs. The cracks are widening. Investigator’s Observation: The cracking on the deck are outside acceptable standards, these cracks will [need] to be repaired by appreciable means. Governing Rule: Violation of any rule adopted by the Registrar; Namely A.A.C. R4-9-108(a): A contractor shall perform all work in a professional and workmanlike manner.

ITEMS NOT REQUIRING CORRECTION

The following complaint items require no action by the Respondent:

Compliance Item: 3 - Cracks in the driveway were never fixed as promised. Investigator’s Observation: I am unable to determine if the damage to the driveway was caused by the pool contractor. Governing Rule: N/A

Compliance Item: 6 - Pebble Tec was stained and I was told it would return to the darker color when it was filled with water. Investigator’s Observation: Pebble Tec is a hand applied product and variations on that color are expected. Governing Rule: N/A

Compliance Item: 7 - The Driveway has cracks across the width of the driveway. Investigator’s Observation: I am unable to determine if the cracking in the driveway is a result of the pool company. Governing Rule: N/A

Investigator Fultz testified that Complainant called him to express frustration that Respondent’s workmen came out for only a few hours work, then left, and had not made appreciable progress on repairing the pool. After the deadline on the directive had passed, Investigator Fultz referred the complaint to the Registrar’s Legal Department.

On April 1, 2020, the Registrar issued a Citation against Respondent, charging cause to suspend or revoke its license under A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108, and A.R.S. § 32-1154(A)(22).

Ms. Petti and Nadine Petti, one of Respondent’s officers, on its behalf filed a timely written answer to the Citation. The written answer explained that Respondent was a small, family-owned business that had always prided itself on listening to and timely responding to its customers’ concerns. Complainant was an exception. Summer came and went and life’s situations got in the way and Complainant’s project slipped Ms. Petti’s and Nadine Petti’s minds. After the settlement, Respondent had removed and replaced the coping. Then one of Respondent’s key employees got sick and the rains came. Ms. Petti and Nadine Petti had kept in touch with Complainant.

Complainant testified that Respondent’s attempts at repair caused new damage. The cement that had leaks in it was now pulling away from pool and sloped toward the house instead of the gutter that carried runoff away from the pool.

Ms. Petti testified that Respondent still wanted to complete repairs to the pool. On April 26, 2020, she had sent an email to Complainant to express her concern about the pool being empty and to offer to have Respondent complete repairs. Ms. Petti testified that Complainant declined her offer.

Ms. Petti testified that when Respondent was performing repairs to comply with the directive, it rained. Stains were coming out because the pool was empty.

Complainant testified that Respondent poured new coping and cut away the old coping. He has photographs of the state of the jobsite in January 2020. There were cracks through the concrete. He noticed water coming into his sliding glass doors during a rain. Complainant testified that Investigator Fultz had photographs of the slope of the coping. Complainant testified that there were also 9 cracks at the pool that were getting wider and that there was a 1” gap around the pool, which Respondent had filled with foam as a stopgap measure.

Pursuant to A.A.C. R9-4-117, administrative notice is taken of Respondent’s license history on the Registrar’s public website on this date. Respondent’s License No. ROC 221919 is active and in good standing. Respondent’s license has been disciplined in one case.

CONCLUSIONS OF LAW

This matter lies within the Registrar’s jurisdiction.

Complainant bears the burden of proof to establish cause to suspend or revoke Respondent’s license by a preponderance of the evidence. Respondent bears the burden to establish affirmative defenses and factors in mitigation of the penalty by the same evidentiary standard.

“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.”

Complainant established that Respondent failed to complete repairs to the project within a reasonable time frame under general standards on the construction industry. Therefore, Complainant established cause to suspend or revoke Respondent’s contractor’s license under A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108.

A contractor does not get unlimited time to complete and repair its workmanship after a homeowner has filed a complaint with the Registrar and a directive has been issued. Respondent did not allege that Complainant did not allow it reasonable access to comply with the directive. Complainant therefore established further cause to suspend or revoke Respondent’s contractor’s license under A.R.S. § 32-1154(A)(22).

RECOMMENDED ORDER

Based on the foregoing, it is ordered that, on the effective date of the final order in this matter, License No. ROC 221919 of Respondent Endless Summer Swimming Pool Construction Inc. DBA: Endless Season Pool Construction shall be suspended for fourteen (14) days.

It is further ordered that the Respondent shall pay the sum of $500.00 as a civil penalty pursuant to A.R.S. § 32-1154(E).

If Respondent fails to pay the entire amount of the civil penalty on or before thirty days following the effective date of the final order, the Registrar shall 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 five days from the date of that certification.

Done this day, June 25, 2020.

/s/ Diane Mihalsky

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors