ALJDEC decisions subject to certification as final

2019A-06045-CHC-ROC · Registrar of Contractors · 2021-03-12

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Jennifer Bonilla,

COMPLAINANT

L H C Custom Pools and Spas LLC,

License No. ROC 260355,

RESPONDENT

No. 2019A-06045-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: March 1, 2021

APPEARANCES: Complainant Jennifer Bonilla, appeared via Google Meet and was represented by T’Shura Ann Elias, Esq., appearing via Google Meet. Kenneth Moyer, Esq., appeared via Google Meet on behalf of Respondent LHC Custom Pools and Spas LLC. Cliff Corlett, Investigator for the Registrar of Contractors appeared via Google Meet.

ADMINISTRATIVE LAW JUDGE: Adam D. Stone

_____________________________________________________________________

FINDINGS OF FACT

LHC Custom Pools and Spas LLC (Respondent) is the holder of License No. 260355 issued by the Arizona Registrar of Contractors (Registrar).

On or about April 30, 2019, Jennifer Bonilla (Complainant) signed a contract with Respondent for a pool and spa to be constructed at her property.

On or about November 21, 2019, the Registrar received a Complaint containing four items against Respondent from Complainant alleging poor work with respect to the project.

The Registrar assigned the complaint to Investigator Cliff Corlett. The initial inspection was performed on January 6, 2020.

Investigator Corlett then issued a written directive on or about January 27, 2020 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 or before February 14, 2020.

. . .

DIRECTIVE REQUIREMENTS

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

Complaint Item 2: Rust on plaster on bottom of the pool.

Investigator’s Observation: Respondent stated he believed the rust stains in bottom of pool to be from a towel.

Respondent should determine cause and correct by appropriate methods.

Governing Rule: A.R.S. §32‐1154‐A. (3)(namely A.A.C. R4‐9‐108 Workmanship Standards for Licensed Contractors.

Poor work not performed in accordance with professional industry standards.

Complaint Item 4: Travertine was not installed correctly. Hilly and uneven.

Nov 7, 2019 received a text stating he would be removing the travertine and a start date of 11/18 and will complete job by Dec. 7, 2019. As of 11/21 he still has not shown up.

Investigator’s Observation: Overall most of the travertine paver installation appeared acceptable with some exceptions.

1. Some areas on the upper deck were observed to have sinking /settling travertine pavers. There were also other paver/tiles around the project observed to have some excessive lippage. The tolerance for natural stone tile lippage is 1/32-inch. (roughly the width of a credit card).

2. Several pavers around the pool copping tiles appeared to have overcuts in them.

3. Excess grout residue on face of travertine stairs and on pool waterline tile.

Respondent should determine cause and correct by appropriate methods.

The homeowners also complained about the paver installation in regards to flowing water toward the deck drains, however the Registrar has no standard to base an opinion on, and this installation looked fairly typical. There was some mention of completing the drain line so that the water has somewhere to go.

Respondent should properly complete the drain line.

Governing Rule: A.R.S. §32‐1154‐A. (3)(namely A.A.C. R4‐9‐108 Workmanship Standards for Licensed Contractors.

Poor work not performed in accordance with professional industry standards.

Complaint Item 5: Electronics

Investigator’s Observation: Electronics control system installation in laundry room incomplete and there appeared to be a short in the power supply strip the respondent was using.

Respondent should properly rework all the electronic control modules and wiring and power supply to work properly and be neatly contained/installed.

Governing Rule: A.R.S. §32‐1154‐A. (3)(namely A.A.C. R4‐9‐108 Workmanship Standards for Licensed Contractors.

Poor work not performed in accordance with professional industry standards.

Following the issuance of the written directive, Complainant filed an addendum to the Complaint regarding missing plaster chunks in the pool.

On March 24, 2020, Investigator Corlett issued a new written directive regarding the plaster chunks and required repairs to be completed on or before April 13, 2020.

On April 30, 2020, Investigator Corlett issued his Compliance Jobsite Inspection Notes, commenting the following:

Compliance Jobsite General Notes: 2nd Compliance Job Site Inspection (CJSI) Respondent has not returned to site since 2nd Written Directive was issued March 24, 2020.

ITEMS NOT IN COMPLIANCE:

1. There are still uneven travertine pavers with excessive lippage.

2. There is still excess Travertine paver grout on face of stair pavers.

3. There are still multiple poorly cut Travertine paver tiles.

4. There are still chips in the pool plaster.

Compliance Findings: RESPONDENT IS NOT IN COMPLIANCE.

On or about May 19, 2020, 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).

On or about June 3, 2020, Respondent submitted its Written Answer to Citation and Complaint.

On or about June 24, 2020, the Registrar issued a Notice of Hearing scheduling a hearing on July 24, 2020 before the Office of Administrative Hearings, an independent State agency.

After several continuances in hopes of reaching a settlement, a hearing was held on March 1, 2021.

At the outset of the hearing, Complainant’s 18 exhibits were entered into the record as well as Respondent’s 8 exhibits.

Investigator Corlett testified as to his involvement with the inspections and his directives. Investigator Corlett testified that while the original complaint only included four items, the electronic control issue was added upon his inspection.

Investigator Corlett testified that he believed that the time to complete the repairs was sufficient.

Finally, Investigator Corlett testified that he completed an onsite pre-hearing inspection on February 24, 2020, and still found issues with the travertine lippage (about 10-15% of the tiles), grout residue on stairs, and while the plaster chips were corrected, new ones existed.

Complainant testified that there were problems right from the start of the project. Further, Complainant testified that Respondent’s workers would often come late at night with lighting to complete the work.

Complainant testified as to the plaster, and while she acknowledged the chips were fixed, it might not have solved the problem, as she believed that there was oil or some substance that was in the plaster mix causing the chipping.

Complainant testified that she estimated that only about half of the Travertine tiles were fixed correctly, and that some of the new tiles are loose and the excess lippage is a hazard.

Further, Complainant testified that during the staying of the proceedings, Respondent performed no work after the initial corrective work was completed and that February 1, 2021 was Respondent’s first time back to make the repairs.

Finally, Complainant acknowledged that the she has not paid the full contract price.

Respondent failed to appear at hearing, but its attorney offered that there was no contesting count 2 of the Citation and Complaint as there was no reasonable basis for the delay. He further argued that Respondent corrected the rust and electronic items in the complaint, and that now most of the tile is within industry standards.

Finally, Respondent’s attorney noted that Respondent has been licensed since 2009 and there were no other complaints and believed only a monetary penalty was appropriate.

Administrative notice is taken of Respondent’s prior License record on March 3, 2020. Such prior License record reflects that Respondent’s License No. 260355 was first issued on November 2, 2009, and is active. Such prior License record also reflects that there is 1 open complaint, namely the present complaint.

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 evidence established that Respondent’s work was not in conformity with the Registrar’s standards. Rust stains were present on the bottom of the pool, the travertine tile was and still is installed incorrectly, and plaster chunks still exist. 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 failed to complete the corrective work following the Directive being issued. Complainant was more than generous to continue these proceedings several times to allow Respondent to repair her pool and spa and surrounding decking. There was no valid excuse for the repairs not being complete. Further, Respondent’s counsel acknowledged the same. 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. 260355 for a period of ten days.

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

It is further recommended that if Respondent fails to pay the entire amount of the civil penalty on or before thirty days following the effective date of the Registrar’s final order, the Registrar 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)(7), 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 20 days from the date of that certification.

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-137160-45720000Done this day, March 12, 2021.

/s/ Adam D. Stone

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors

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-137160-45720000