ALJDEC decisions subject to certification as final
2019A-04378-CHC-ROC · Registrar of Contractors · 2020-09-03
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
Quirino Cabrera,
COMPLAINANT
v.
E And E Pool Construction LLC,
License No. ROC 309416,
RESPONDENT
No. 2019A-04378-CHC-ROC
ADMINISTRATIVE LAW JUDGE
DECISION
HEARING: June 16 and August 18, 2020
APPEARANCES: Quirino and Jeri Cabrera appeared on Complainants’ behalf on June 16, 2020; Marshall R. Hunt, Esq. appeared for Complainants on August 18, 2020; Kurt Hammond, Esq. appeared for Respondent
ADMINISTRATIVE LAW JUDGE: Thomas Shedden
FINDINGS OF FACT
On March 23, 2020, the Registrar of Contractors (“ROC”) issued a Notice of Hearing setting the above-captioned matter for hearing on April 23, 2020 at the Office of Administrative Hearing.
The matter was continued and the hearing was convened on June 16, 2020 and concluded on August 18, 2020.
The Notice of Hearing shows that the hearing was set to consider the charges made in the complaint and citation that were served on Respondent E and E Pool Construction LLC on January 27, 2020.
Respondent holds license number 309416 issued by ROC. Arnold Elzy is an officer in the LLC.
Complainant Quirino Cabrera and his wife Jeri Cabrera hired E and E to build a pool and related infrastructure at their home.
The contract price was $21,000, which the Cabreras paid to E and E. Subsequently however, the Cabreras had the credit card company rescind a payment of $3150.
After the Cabreras rescinded the $3150 payment, E and E filed a breach of contract lawsuit in the superior court. An arbitrator ruled in favor of E and E, and the Cabreras appealed that decision. As of the August 18, 2020 hearing date the parties’ contract dispute was to be heard in a trial de novo.
On August 29, 2019, shortly after E and E filed the breach of contract suit, ROC received from the Cabreras a complaint against E and E alleging abandonment and incomplete work on E and E’s part.
The crux of the contract dispute and the basis of the Cabreras’ claim that E and E did not complete the work is the issue of how much Kool decking E and E was obligated to install at the Cabreras.
The Cabreras assert that E and E was to install 500 square feet of Kool decking, which would include covering an existing concrete area. E and E asserts that it was obligated to install only 270 square feet.
ROC assigned Investigator Lisa Melton to the Cabreras’ complaint.
Ms. Melton conducted a jobsite inspection on November 14, 2019.
On December 6, 2019, ROC issued to E and E Pools a Directive providing in part:
*** You must notify the Registrar’s assigned Investigator of your compliance with this Directive prior to 5:00 p.m. on December 27, 2019.
***
You are directed to remedy the following violations by the appropriate means:
Complaint Item 8: Cool deck installed and the patio was not completed per contract (4-18-19) concrete shaved by E & E
Investigator’s Observation: Contract drawing shows decking up to existing tiled patio area. Decking was not installed, tile purchased by Complainant was installed in this area by the Respondent’s subcontractor, no change order.
Governing Rule: A.R.S. 32-1154 (A) (2), Plans, Specifications and Building Code Violation.
Complaint Item 9: in order to install the drain and left the rest of the patio bare concrete per Arnold's direction
Investigator’s Observation: Contract drawing shows decking up to existing tiled patio area. Decking was not installed, tile purchased by Complainant was installed in this area by the Respondent’s subcontractor, no change order.
Governing Rule: A.R.S. 32-1154 (A) (2), Plans, Specifications and Building Code Violation.
Complaint Item 16: Pool light not installed correctly and not secured to pool wall (5-15-2019)
Investigator’s Observation: Pool light is flush with wall on one side and shows gap between pool light and wall on other side.
Governing Rule: ARS §32-1154 (A) (3), Poor work not performed in accordance with professional industry standards.
ITEMS NOT REQUIRING CORRECTION
The following complaint items require no action by the Respondent:
Complaint Item 1: Pool construction has not been completed per agreed contract. Start 12-21-2018
Investigator’s Observation: Construction complete at time of Inspection.
Governing Rule: Not applicable.
Complaint Item 2: Sprinkler system damaged during dig (3-7-2019)
Investigator’s Observation: Repaired by other than Respondent. Modified.
Governing Rule: Not applicable.
Complaint Item 3: Driveway of quartzite destroyed by bobcat and was to be repaired by E and E.
Investigator’s Observation: Repaired by other than Respondent. Modified.
Governing Rule: Not applicable.
Complaint Item 4: Driveway and landscape rocks added and leveled off paid by owner ($850) E and E refused to fix.
Investigator’s Observation: Repaired by other than Respondent. Modified. Financial matter.
Governing Rule: Not applicable.
Complaint Item 5: Skimmer and aerator installed (3-11-2019) remains incomplete
Investigator’s Observation: Skimmer and aerator appear to be in working condition.
Governing Rule: Not applicable.
Complaint Item 6: Notified E and Eon the sprinkler system not functioning and plants dying (3-19-2019)
Investigator’s Observation: Repaired by other than Respondent. Modified. No authority over vegetation. Landscape is not part of contract.
Governing Rule: Not applicable.
Complaint Item 7: Concrete decking bowed out to be corrected by E and E (4-4-2019) Still not done
Investigator’s Observation: Pool has passed inspection. Decking is not cracked and does not have an irregular finish, meets workmanship standards.
Governing Rule: Not applicable.
Complaint Item 10: cost of Porcelain tile for deck area which was not completed per contract; owner purchased ($640.50)
Investigator’s Observation: Not a workmanship issue that can inspected and/or evaluated.
Governing Rule: Not applicable.
Complaint Item 11: Yard flooded due to faulty pool leveler install; causing in increase in bill of ($300)
(5-7-2019)
Investigator’s Observation: Not a workmanship issue that can be inspected and/or evaluated.
Governing Rule: Not applicable.
Complaint Item 12: Cost of adding pool chemicals; ($199) were not added as per contract (5-10-2019)
Investigator’s Observation: Not a workmanship issue that can be inspected and/or evaluated.
Governing Rule: Not applicable.
Complaint Item 13: Cost of pool cleaning due to lack of providing a vaccum [sic]; request was made ($90)
(5-13-2019)
Investigator’s Observation: Not a workmanship issue that can be inspected and/or evaluated.
Governing Rule: Not applicable.
Complaint Item 14: Water level uneven throughout pool, advised Arnold Elzy (5-16-2019)
Investigator’s Observation: Pool has passed inspection. Substantial completion 5/30/2019.
Governing Rule: Not applicable.
Complaint Item 15: Rust on steps of the pool; improper acid wash (5-15-2019)
Investigator’s Observation: Approximately 6 months outside of substantial completion (5/10/2019) unable to determine cause of rust stain.
Governing Rule: Not applicable.
Complaint Item 17: Improper grading of west side of patio causing water to pool during rain
Investigator’s Observation: Landscaping not part of contract.
Governing Rule: Not applicable.
Complaint Item 18: Cool decking is not level around the entire pool.
Investigator’s Observation: Pool has passed inspection. Decking is not cracked and does not have an irregular finish, meets workmanship standards. Level at areas inspected with level.
Governing Rule: Not applicable.
Complaint Item 19: Cool decking face is not horizontal and changes in thickness and angle around the entire pool.
Investigator’s Observation: Pool has passed inspection. Coping/decking is not cracked or loose, meets workmanship standards.
Governing Rule: Not applicable.
Complaint Item 20: Pool depth is not per contract
Investigator’s Observation: Complainant alleged that depth is at or around 6’5”. Depth as measured by Complainant & Respondent with tape measure (in pool) did not exceed 5’6”.
Governing Rule: Not applicable.
Mr. Elzy testified to the effect that he has 16 to 18 years’ experience constructing pools, he has been involved in over an estimated 1000 pool jobs, and lights often have a gap. As such, did not agree that the installation of the pool light was deficient. Mr. Elzy sought guidance about the issue from Ms. Melton, but she provided none.
Ms. Cabrera testified to the effect that the light is loose and there is rust on it.
Neither the Cabreras nor Ms. Melton provided any objective standard by which the issue can be judged (i.e., whether any gap is allowable or whether the light must be 100% flush to the wall).
Ms. Melton’s jobsite digital photograph number 15 shows the light, but no gap is readily apparent in that photograph.
At the time ROC’s Directive was issued, E and E was closed for the holidays. Nevertheless, on December 19, 2019, E and E sent a technician to adjust the light.
Initially, E and E thought that the adjustment could be made with the technician laying on the side of the pool and reaching into the water. The technician discovered however that he was not able to make the adjustment from outside the pool and that either the pool would need to be drained or it would be necessary to wait for the water to warm up to allow the technician to enter the pool.
E and E requested that ROC extend the time for its compliance with the Directive, but because the Cabreras were unwilling to agree to an extension of time, ROC would not grant an extension.
Regarding the Kool decking, the parties had entered into evidence a number of documents in support of their respective positions. In some cases, there are more than one copy of the same documents and different versions of the documents in evidence. For example, Respondent’s exhibit 3 at Bates page 20 and exhibit 4 at Bates 28 are both a listing of the tasks to be completed with prices for each task. Page 20 is signed by Mr. Elzy, but not Mr. Cabrera, and includes additional handwritten entries detailing progress payments being made, whereas page 28, is signed by Mr. Cabrera but not Mr. Elzy and does not include the progress-payment information.
The Cabreras rely primarily on their exhibit 13 at page 2, which is an unsigned “Contract” showing 500 square feet of “lace” (i.e., Kool decking) under the heading “Deck/Tile;” their exhibit 22 at page 4, which shows the new decking and the existing concrete both labeled as “Deck;” and their exhibit 21, which includes conceptual drawings that show the same surface for the new decking and the existing concrete pad.
Mr. Elzy acknowledged that the “Contract” shows 500 square feet, but relies on Respondent’s exhibit 4 at Bates page 28, which is signed by Mr. Cabrera, and shows the unit prices for the project, including a cost of $3000 for 270 square feet of Kool deck. The version of that document, signed by Mr. Elzy, but not Mr. Cabrera (Respondent’s exhibit 4 at page 20) has been initialed by Ms. Cabrera in the area in which the parties were tracking progress payments.
Respondent also relies on Complainants’ exhibit 22 at page 4, which is signed by Ms. Cabrera and Mr. Elzy and has handwritten calculations showing 270 square feet of Kool decking. Ms. Cabrera testified that she signed that document before the handwritten calculations were added.
Ms. Cabrera initially testified that E and E did not provide her with a copy of the document with the handwritten calculations and when asked how the Cabreras had a copy in their exhibits, she responded that she did not know. In response to a leading question as to whether the Cabreras had obtained it as part of E and E’s disclosure in the civil suit, she respondent yes. But this seems unlikely because exhibit 22 at page 4 does not include an E and E Bates number.
Ms. Cabrera acknowledged that not all the features shown in the conceptual drawings were actually agreed to by the parties. For example, the conceptual drawing shows new material over what was existing tile, which the parties did not agree to.
Ms. Cabrera testified that the parties had a meeting of the minds that called for 500 square feet of Kool decking. Mr. Elzy disagreed and testified to the effect that the Cabreras were working on a budget and that Mr. Cabrera agreed to limit the Kool decking to the 270 square feet as seen in Respondent’s exhibit 4 at Bates page 28 (which was signed by Mr. Cabrera).
On January 27, 2020, ROC issued to Respondent a Citation through which it alleged that E and E may have violated Ariz. Rev. Stat. sections 32-1154(A)(2)(a), (A)(3) and (A)(22).
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).
There was no substantial evidence adduced to show that E and E is unscrupulous, unqualified, or financially irresponsible.
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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2. Departure from or disregard of:
(a) Plans or specifications in any material respect that is prejudicial to another without consent of the owner or the owner's duly authorized representative and without the consent of the person entitled to have the particular construction project or operation completed in accordance with such plans and specifications and code.
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3. Violation of any rule adopted by the registrar.
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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 must set forth the time within which the contractor is to complete the remedial action. The time permitted for compliance may not be less than fifteen days from the date of issuance of the directive....
Ariz. Admin. Code section R49108 provides that “A contractor shall perform all work in a professional and workmanlike manner[,] ” and that “a contractor shall use such skills, prudence, and diligence in performing and completing tasks undertaken that the completed work meets the standards of a similarly licensed contractor possessing ordinary skill and capacity.
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 is conflicting evidence in the record as to whether E and E was required to install 270 square feet of Kool decking or 500 square feet, but Mr. Cabrera signed the document showing that the parties agreed to 270 square feet (Respondent’s exhibit 4 at page 28), which is sufficient to negate any finding that E and E violated Ariz. Rev. Stat. section 32-1154(A)(2)(a). It has not been shown by a preponderance of the evidence that E and E violated Ariz. Rev. Stat. section 32-1154(A)(2)(a).
It has not been shown by a preponderance of the evidence that E and E violated Ariz. Admin. Code section R4-19-108. The only evidence of the violation is the testimony of Ms. Nelson that the light had a gap and that the gap constituted a workmanship violation. But there was no evidence as to the size of the gap and there were no objective standards provided on which a valid determination can be made. In addition, Mr. Elzy testified to the effect that gaps were common and there was no evidence to show that a similarly licensed contractor would disagree with that assessment. Consequently, it has not been shown that E and E violated Ariz. Rev. Stat. section 32-1154(A)(3).
It has not been shown by a preponderance of the evidence that E and E Pools violated Ariz. Rev. Stat. section 32-1154(A)(22). Regarding the Kool decking, it has not been shown that E and E was required by contract to install 500 square feet of decking, and so E and E was justified in not completing that work. Regarding the pool light, because it has not been shown that this was a workmanship violation, E and E was justified in not making the correction ROC ordered it to complete. Moreover, even if the pool light was a workmanship violation, E and E’s failure to complete the work would be justified by the fact that it attempted to make a repair but was unable to do so based on the need to either drain the pool or wait for the water to warm up, and when E and E requested the additional time to complete the work, the Cabreras were unwilling to allow E and E any additional time and ROC refused to extend the compliance deadline.
Consequently, this matter should be dismissed.
RECOMMENDED ORDER
IT IS ORDERED that case number 2019-04378 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, September 3, 2020.
/s/ Thomas Shedden
Thomas Shedden
Administrative Law Judge
Transmitted electronically to:
Jeffrey Fleetham, Director
Registrar of Contractors
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