ALJDEC decisions subject to certification as final

2020A-01015-CHC-ROC · Registrar of Contractors · 2020-09-24

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Robin L Billingsley,

COMPLAINANT

Power Pools LLC,

DBA: Above and Beyond Pool Remodeling, License Nos. ROC 257866, 261054,

RESPONDENT

No. 2020A-01015-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: September 9, 2020

APPEARANCES: Complainant Robin L. Billingsley, represented by Marshall R. Hunt appeared on via Google Meet. Michael Sandoval appeared via Google Meet on behalf of Respondent Power Pools, LLC and was represented by Bijal Patal-Weintraub. Dennis Bierma, Investigator for the Registrar of Contractors appeared via Google Meet.

ADMINISTRATIVE LAW JUDGE: Adam D. Stone

_____________________________________________________________________

FINDINGS OF FACT

Power Pools LLC, (Respondent) is the holder of License Nos. 257866 and 261054 issued by the Arizona Registrar of Contractors (Registrar).

On or about November 19, 2019, Robin L. Billingsley (Complainant) signed a contract with Respondent for repair on her pool.

On or about March 1, 2020, the Registrar received a Complaint containing two items against Respondent from Complainant alleging poor work with respect to the project.

The Registrar assigned the complaint to Investigator Dennis Bierma. The original inspection was performed on April 10, 2020. However, Complainant supplied an addendum to the Complaint on April 16, 2020, and a second jobsite inspection was performed on April 30, 2020.

Investigator Bierma then issued a written directive on or about May 15, 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 June 19, 2020.

. . .

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

Complaint Item 8: Complaint item #6 as listed on email addendum from 04/16/20. “Unlevel surface of upper pool edge, waterline tile and Kool Deck along back side or south side of pool where rolled bond beam was replaced.”

Investigator’s Observation: Verified: Upon observation of this item it has been verified that this area of deck on the south side of the pool is wavy with dips throughout. This amount is excessive. Respondent shall correct this item by appropriate means.

Governing Rule: A.R.S. § 32-1154 (A) 3: Violation of any rule adopted by the registrar, Namely R 4-9108: (A) A contractor shall perform work in a professional and workmanlike manner.

Following the issuance of the written directive, the repairs were not made prior to the June 19, 2020 deadline.

On or about June 23, 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).

At hearing, Mr. Sandoval testified that he did not dispute that there was a violation, but that Complainant prevented him with an opportunity to correct the work. Mr. Sandoval testified that he tried multiple times soon after the Directive was issued to contact Complainant to schedule a time to make the repairs.

Mr. Sandoval further testified that he made telephone calls and sent e-mails to Complainant to schedule a time for the repairs but they went mostly unanswered at first. Mr. Sandoval testified that he reached out to Investigator Bierma for assistance due to the problems he was having scheduling the work.

According to Mr. Sandoval’s testimony, Complainant required written procedures for how the repairs were to be completed and wanted to be compensated for her time because she wanted to supervise the repairs.

Mr. Sandoval testified that he sent an e-mail to Complainant detailing the corrective work that he was going to undertake.

Mr. Sandoval then testified that on June 1, 2020, Complainant informed him that she could “accommodate your employees being here on June 15 and 16, 2020.” Mr. Sandoval also informed Complainant that the project could take up to five days to complete.

In addition, Mr. Sandoval testified that he sent an e-mail informing Complainant that he would be at her residence on June 15, 2020 to commence the repairs. According to Mr. Sandoval’s testimony, there was no response to that message either confirming or denying the appointment.

Mr. Sandoval further testified that upon arriving at Complainant’s residence on June 15, 2020, there was discussion about settling the matter for $2,500.00 if Complainant would dismiss the Complaint. Mr. Sandoval testified that Complainant agreed to the payment but would not agree to dismiss the Complaint.

Mr. Sandoval next testified that after the proposed agreement failed, Complainant presented him with a clipboard with a piece of paper attached. The document contained several conditions prior to commencing the repairs, namely that the landscaping around the east and south sides of the pool area were to be protected or repaired at Respondent’s expense, all workers must have identification visible while working, and any expenses incurred by Complainant (utilities or any damage to landscaping or property) would be borne by Respondent.

Mr. Sandoval testified that it was at that point that he walked off the jobsite as he believed he was not required to sign this document as a condition for the corrective work. Finally, he testified that he sent an e-mail to Investigator Bierma informing him of what occurred at the jobsite.

Complainant testified generally that she could not have a civil conversation with Mr. Sandoval at any time. She further testified that there were multiple phone calls from Mr. Sandoval at 6:00 am which constituted “harassment”.

Complainant further testified that while she was employed as a school bus driver, she also provides massage services out of her home, so scheduling a time for repairs needed to be around her massage schedule.

Complainant further testified that she agreed to allow Mr. Sandoval to commence the repairs on June 15 and 16, 2020.

Complainant testified that she presented the document in her Exhibit 6 to make it clear who was responsible for what in case there was any damage, because she was having her yard prepared for the laying of artificial turf and did not want that process disrupted.

Complainant testified that Mr. Sandoval refused to sign the document and left the jobsite after being there for less than 30 minutes.

Complainant also presented the testimony of her grandson, Alex Billingsley.

Mr. Billingsley testified that he was home on June 15, 2020, and heard a loud argument of “extortion”, but also testified he was not outside in the yard where the argument took place, but rather inside the residence.

Investigator Bierma testified that Mr. Sandoval agreed that there was a workmanship issue and agreed to correct the issue, but the parties had a difference on how to resolve the issue.

Investigator Bierma testified that there were multiple e-mails from the parties beginning on May 20, 2020, as to the difficulties the parties were having scheduling the work and how the work was to be performed.

Investigator Bierma also testified that while the Registrar of Contractors does not require a contractor to provide plans as to how the repairs were to be completed, Mr. Sandoval provided those plans to Complainant.

Administrative notice is taken of Respondent’s prior License record on September 10, 2020. Such prior License record reflects that Respondent’s License No. 261054 was first issued on November 30, 2009, and is active. Such prior License record also reflects that there are no open complaints. As to Respondent’s License No. 257866, that License was first issued on August 26, 2009, and is currently active with one 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, and Mr. Sandoval agreed, that work was not in conformity with the Registrar’s standards with regards to the un-level surface on the Kool Deck. Therefore, Complainant established that Respondent failed to complete the project in a workmanlike manner in violation of A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108.

A.R.S. § 32-1154(A)(22) holds in pertinent part, “[f]ailure 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. A license may not be revoked or suspended nor may any other penalty be imposed for a violation of this paragraph until after a hearing has been held.”

In this case, the evidence showed that Mr. Sandoval attempted to schedule the repairs with Complainant as early as May 19, 2020. When Complainant requested specific details as to how the repairs were to be made, Mr. Sandoval too complied with that request despite not being required to do so. Once Mr. Sandoval provided the timeline he would need to complete the job (five days), Complainant’s only available dates were June 15 and 16, 2020 which would have been outside of the time for compliance with the Written Directive. Mr. Sandoval still forged ahead with an e-mail stating that he would commence the repairs on June 15, 2020.

Complainant did not dispute that she presented the agreement in her Exhibit 6. However, such an agreement is not required by the Registrar of Contractors, and presumably if there was damage to her property or further lack of quality work it could give rise to another complaint or cause of action.

The Registrar of Contractors allows contractors the opportunity to perform corrective work. Denial of access constitutes a valid justification for failing to comply with a written directive of the Registrar of Contractors. Respondent established by a preponderance of the evidence that it attempted to complete the corrective work, but was not allowed the reasonable access it needed to complete the same. Therefore, Respondent cannot properly be disciplined for the 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 close as dismissed Complainant Robin L. Billingsley’s complaint in Case No. 2020A-01015 against Respondent’s Power Pools, LLC License Nos. 261054 and 257866.

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.

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-137160-45720000Done this day, September 24, 2020.

/s/ Adam D. Stone

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors

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-137160-45720000