ALJDEC decisions subject to certification as final

2019A-04759-CHC-ROC · Registrar of Contractors · 2020-03-03

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Jeffrey Daniel Dunn,

COMPLAINANT,

New Image Landscape and Pools LLC,

ROC License: ROC 247546, 319979, 069226,

RESPONDENT.

No. 2019A-04759-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: February 12, 2020

APPEARANCES: Complainant Jeffrey Daniel Dunn appeared on behalf of himself. David Stewart appeared on behalf of Respondent New Image Landscape and Pools, LLC.

ADMINISTRATIVE LAW JUDGE: Velva Moses-Thompson

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The issue presented by this matter is whether Respondent New Image Landscape and Pools LLC (New Image) violated Ariz. Rev. Stat. sections 32 1154(A)(3) and (A)(22) as alleged in the Citation and Complaint. Based on the evidence of record, it is recommended that the complaint and the Citation issued by the Arizona Registrar of Contractors (Registrar) be dismissed in their entirety.

FINDINGS OF FACT

On January 10, 2020, the Registrar issued a Notice of Hearing setting the above-captioned matter for hearing on February 12, 2020, by the Office of Administrative Hearings in Phoenix, Arizona.

New Image holds license numbers 247546, 319979, and 069226, all issued by the Registrar.

The Notice of Hearing shows that the hearing was set to consider the charges made in the Citation and Complaint.

Through the Citation, the Registrar alleges that New Image may have violated Ariz. Rev. Stat. sections 32-1154(A)(3) and (A)(22). The Citation shows that if the Administrative Law Judge finds that any of the alleged charges are valid, Registrar may suspend or revoke New Image’s license.

On or about March 30, 2019, Complainant Jeffery Daniel Dunn and New Image entered into a pool construction contract.

Kyle Greenhalgh was the contract designer for the project and an

employee of New Image.

Jared Strother was the project manager and employee of New

Image.

On or about April 9, 2019, New Image began installing the pool.

On March 26, 2019, Mr. Dunn sent an e-mail to Mr. Greenhalgh and

asked why the aerator was not included in the renderings. Mr. Greenhalgh replied on March 27, 2019 and stated, an “Aerator come standard in every pool.”

On June 10, 2019, Mr. Dunn sent an e-mail to Mr. Stewart and Jared

Strother which provided, in relevant part, as follows:

Thanks again for meeting me at the house this morning. We had a great weekend with the pool. This e-mail will recap what was discussed during gout meeting.........

The missing aerator was acknowledged but will not be necessary.

On or about August 19, 2019, New Image stopped work at Mr. Dunn’s

home.

On or about September 19, 2019, Mr. Dunn filed a complaint with the

Registrar alleging poor work and mismanagement on the part of New Image.

On October 7, 2019, Investigator Wes Ellington conducted a job site

inspection.

On November 22, 2019, Investigator Ellington issued a Directive. The

November 22, 2019 Directive provided, in relevant part as follows:

After investigation, the Registrar has verified that your work fails to meet minimum workmanship standards. A.R.S. § 32-1154(A)(3); A.A.C. R4-9-108. Failure to comply with this Directive constitutes a violation of A.R.S. § 32-1154(A)(22) and may result in the issuance of a citation, discipline of your license, and a civil penalty pursuant to A.R.S. § 32-1154(E) of up to $500.00.

You must notify the Registrar’s assigned Investigator of your compliance with this Directive prior to 5:00 p.m. on December 10, 2019.

RESTRICTIONS

• You may not perform or hire other contractors to perform work that is outside the scope of your license.

• If your license is currently suspended for administrative reasons, or is inactive, expired, or cancelled, you may not perform any corrective work nor contract in any manner, which includes hiring other contractors to perform work, until the suspension of your license(s) has been lifted or your license(s) has been reactivated.

DIRECTIVE REQUIREMENTS

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

Complaint Item 2: Aerator is missing from pool despite an email “aerator comes standard in every pool”.

Investigator’s Observation: Verified, there is no aerator installed. There is no aerator in the contract, however, the Complainant provided an email conversation addressing the missing aerator. Kyle Greenhalgh of New Image responded and said an aerator comes standard in every pool. This is an agreement in writing and is considered binding. The Respondent will need to correct this issue.

Governing Rule: Workmanship rule: ARS §32-1154 (A) (2), Departure from or disregard of plans of specifications.

New Image did not comply with the November 22, 2019 Directive.

New Image filed a timely answer to the Citation.

The matter was referred to the Office of Administrative Hearings.

A hearing was held on February 12, 2020.

At hearing, Investigator Ellington provided testimony regarding the job site

inspection and the November 22, 2019 Directive. Mr. Dunn testified no his own behalf. New Image presented the testimony of Kyle Greenhalgh, David Stewart, and Jared Strother.

Mr. Greenhalgh holds a Bachelor’s degree in Architectural Design.

Mr. Greenhalgh met with Mr. Dunn after the contract was signed to discuss the design of the pool and the sheer descent wall. Jared Strother was also present at the meeting. Mr. Greenhalgh was unable to show Mr. Dunn how the sheer descent wall would look because of the 3D software. Instead, Mr. Greenhalgh showed Mr. Dunn photographs of a sheer descent wall of another pool installation to represent how the pattern would look. After the meeting, Mr. Greenhalgh sent Mr. Dunn a modified plan and included the words “Herringborne tile” on the plan. The plan was not signed and returned to New Image or Mr. Greenhalgh.

Mr. Greenhalgh stated that he wrote Herringbone tile on the plan because

he believed at the time that it was the best way to describe the design. Mr. Greenhalgh explained that there are about nine different Herringbone patterns. Mr. Greenhalgh explained that the pattern of Mr. Dunn’s sheer descent wall would best be described as a modified Herringborne pattern or a mirrored diagonal pattern.

Mr. Greenhalgh explained that Mr. Dunn never objected to the pattern on

the sheer descent wall shown in the photographs. Mr. Greenhalgh explained that

Mr. Dunn chose tile that cannot be purchased in a Herringbone pattern. To install a Herringbone tile, the tile must be a 2 to 1 ration. Mr. Dunn selected a tile that was a 4 to 1 ratio. Mr. Greenhalgh explained that it would be labor intensive to cut down 4 to 1 ratio tile to produce the Herringbone pattern.

I find Mr. Greenhalgh’s testimony to be credible.

Mr. Strother was the project overview manager. Mr. Strother explained

that Mr. Dunn chose the pattern that Mr. Greenhalgh showed Mr. Dunn at the April 2019 meeting.

Mr. Stewart explained that New Image does not install aerators with pools

that have water features. Mr. Stewart explained that New Image did not install an aerator with the pool because the pool was installed with a water feature and sheer descents that help cool the pool. Mr. Stewart explained to Mr. Dunn at a meeting on June 10, 2019 that the aerator was not necessary because the pool was installed with water features which provided the cooling effect.

Mr. Dunn asserted that New Image agreed to install a Herringbone tile.

Mr. Dunn contended that the revised plan showed that Herringborne tile would be installed. Mr. Dunn also asserted that New Image should have provided installed an aerator with the pool.

CONCLUSIONS OF LAW

This matter lies within the Registrar’s jurisdiction. See Ariz. Rev. Stat. sections 32-1101 et seq.

Complainant bears the burden of proof to establish Respondent’s statutory violation by a preponderance of the evidence. See Ariz. Rev. Stat. section

41-1092.07(G)(2); A.A.C. R2-19-119(A) and A.A.C. R2-19-119(B)(1); see also Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952). “A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.” Morris K. Udall, Arizona Law of Evidence § 5 (1960)

The preponderance of the evidence does not show that Respondent

performed poor work when it failed to install a Herringbone pattern. Respondent presented credible testimony that there are several types of Herringbone patterns. Although the changed plan proposal that was sent by e-mail to Mr. Dunn stated “Herringbone pattern”, the change did not specify the type of pattern. There is a dispute regarding the type of design agreed upon by the parties, however the preponderance of the evidence does not show that Respondent performed poor work.

The preponderance of the evidence does not show that Respondent

constructed the pool below workmanship standards by failing to install an aerator.

Mr. Stewart provided credible testimony that aerators are not required when a pool has water features because the cooling effect is not needed. Investigator Wellington did not conclude that Respondent performed poor work by failing to install an aerator. Investigator Wellington concluded that the plans required the installation of an aerator. However, the Registrar did not issue a Citation against Respondent’s license for an alleged violation of Ariz. Rev. Stat. section 32-1154(A)(2), nor was such an allegation included in the Notice of Hearing. Therefore, the Administrative Law Judge does not have jurisdiction over an alleged violation of Ariz. Rev. Stat. section 32-1154(A)(2).

5. This Tribunal concludes that the preponderance of the evidence of record is insufficient and fails to support a conclusion that Respondent violated the charged provisions of Ariz. Rev. Stat. section 32-1154(A)(3), namely, A.A.C. R4-9-108, and Ariz. Rev. Stat. section 32-1154(A)(22).

RECOMMENDed order

In view of the foregoing, it is recommended that this matter be 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, March 3, 2020.

/s/ Velva Moses-Thompson

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors

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