ALJDEC decisions subject to certification as final

2019A-05102-CHC-ROC · Registrar of Contractors · 2020-07-17

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Preston Tyrone Smith,

COMPLAINANT

Arcos Pool LLC,

License No: 275203,

RESPONDENT

No. 2019A-05102-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: June 22, 2020

APPEARANCES: Complainant Preston Tyrone Smith appeared on his own behalf. Pedro Castillo, Member and Qualifying Party, appeared on behalf of Respondent Arcos Pool LLC.

ADMINISTRATIVE LAW JUDGE: Tammy L. Eigenheer

_____________________________________________________________________

FINDINGS OF FACT

Arcos Pool LLC (Respondent) is the holder of License No. 275203 issued by the Arizona Registrar of Contractors (Registrar).

On or about April 18, 2018, Preston Tyrone Smith (Complainant) entered into a contract with Serenity Design and Construction LLC (Serenity Design) for construction of a new swimming pool. Serenity Design subcontracted with Respondent for the project. The contract included the following description of the project:

30x12 ft 4 inches rectangle pool with 3ft concrete deck with cook deck all around pool

shallow to Middle 5 ft on other end 4 ft

included

vacuum hose

sand filter

pump

1 light white

permits

(hard digging is change order)

6 water jets to make water fall

We will set up for a future heater. We will not set up or install

On or about October 10, 2019, the Registrar received a Complaint against Respondent from Complainant alleging abandonment with respect to the project.

The Registrar assigned the complaint to Investigator Steve Klein. After a jobsite inspection, Investigator Klein issued a written directive to Respondent that provided 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 November 27, 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 prior discipline or 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 1: Pool not built to specifications per contract

• Complainant states pool depth is not per plan. I’m unable to verify depth due to pool being full of water. Pool depth should be completed per plan within 3” inches plus or minus.

• Respondent shall complete project per original contract agreement, plans, specifications, properly executed, change orders, local building codes and manufacturers installation instructions.

Complaint Item 2: Water features not installed.

• Verified pool water feature trim is not completed, also complainant says contract calls for six jets and only four are installed.

• Respondent shall complete project per original contract agreement, plans, specifications, properly executed, change orders, local building codes and manufacturers installation instructions.

Complaint Item 3: Water features not operational.

• Water features should function as intended.

Complaint Item 4: Vacuum hose system not installed

• Vacuum system completed by others. Respondent states contract is to supply hose only. Possible contract dispute.

• Respondent shall complete project per original contract agreement, plans, specifications, properly executed, change orders, local building codes and manufacturers installation instructions.

Complaint Item 5: Heater system not installed properly.

• Heater not installed.

• Respondent shall complete project per original contract agreement, plans, specifications, properly executed, change orders, local building codes and manufacturers installation instructions.

Following the issuance of the written directive, Respondent performed some corrective work. After the deadline in the directive expired, Investigator Klein was notified that not all of the corrective work had been performed.

The Registrar issued a Citation against Respondent, charging possible violations of A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108; and A.R.S. § 32-1154(A)(22).

Investigator Klein testified that he was unable to check the depth of the pool to ensure that it was within three inches of the plan specifications. Investigator Klein also indicated that the contract called for six jets to be installed and Respondent had installed jets at four locations, two had one nozzle and two had two nozzles. Investigator Klein stated that he was uncertain what was required by the contract in relation to setting up a heater in case Complainant wanted to install one later. Investigator Klein testified in general that some of the items in the written directive were contractual issues and he was unable to determine what the terms of the agreement were. Accordingly, he instructed Respondent to complete the project per the original contract.

Stephanie Diaz testified on behalf of Complainant and stated that she believed six separate jets would be installed. Ms. Diaz indicated that the pool was supposed to be five feet deep, but another pool contractors had informed her the pool was only four feet, eight inches deep. Ms. Diaz also stated that she was sent photos of pools with six jets evenly spaced along the side of the pool to create the water fall and was told that was how the pool would look.

Juan Jose Esparza, Project Manager for Serenity Design, testified that Serenity Design hired Respondent to install the pool on the project and Respondent constructed the pool the way Serenity Design asked it to. Mr. Esparza stated that the first two jets were moved because their initial placement would have resulted in the water splashing in the shallow area of the pool where people enter or can sit. Mr. Esparza indicated Ms. Diaz was informed of this and agreed.

Administrative notice is taken of Respondent’s prior License record on July 16, 2020. Such prior License record reflects that Respondent’s License No. 275203 was first issued on October 2, 2011, and is active. Such prior License record also reflects that there were no other open or prior complaints against Respondent’s license.

CONCLUSIONS OF LAW

This matter lies within the Registrar’s jurisdiction. See A.R.S. § 32-1101 et seq.

Complainant bears the burden of proof to establish Respondent’s statutory violations by a preponderance of the evidence. See A.R.S. § 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 failed to establish that the pool was not built to the correct depth. Ms. Diaz’s representation and letter from a contractor who did not appear at the hearing was insufficient to establish the actual depth of the pool and Investigator Klein acknowledged he was unable to verify the pool depth at the time of the inspections.

The preponderance of the evidence established the water feature was not installed according to the terms of the contract. The plans called for six separate jets to be placed evenly along the sides of the pool, and the installation of two nozzles in two of the locations was not according to the plans.

The preponderance of the evidence failed to establish that the set up for a future heater system was not installed properly. The terms of the contract were vague as to what was to be installed, therefore, it cannot be determined that the installation by Respondent was insufficient to meet the terms of the contract.

Accordingly, with respect to the installation of the water jets, Respondent’s work was not in conformity with the Registrar’s standards. Therefore, Complainant established that Respondent did not complete the project in a workmanlike manner in violation of A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108.

The evidence established that Respondent did not complete the corrective work to the water jets following the Directive being issued. Therefore, Complainant established that Respondent failed to take appropriate corrective action following a written directive from the Registrar in violation of A.R.S. § 32-1154(A)(22).

RECOMMENDED ORDER

Based on the foregoing, it is recommended that on the effective date of the Order, the Registrar shall suspend Respondent’s License No. 275203 for a period of one day.

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 40 days from the date of that certification.

-54864001

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-137160-45720000Done this day, July 17, 2020.

/s/ Tammy L. Eigenheer

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors-54864001

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-137160-45720000