ALJDEC decisions subject to certification as final

2020A-01020-CHC-ROC · Registrar of Contractors · 2020-09-23

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Quirino Cabrera

COMPLAINANT

E And E Pool Construction LLC

License No. 309416,

RESPONDENT

No. 2020A-01020-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: September 2, 2020

APPEARANCES: Complainant Quirino Cabrera appeared and was represented by Marshall Hunt. Arnold Elzy, Owner, appeared on behalf of Respondent E And E Pool Construction LLC, which was represented by Kurt Hammond.

ADMINISTRATIVE LAW JUDGE: Tammy L. Eigenheer

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FINDINGS OF FACT

E And E Pool Construction LLC (Respondent) is the holder of License No. 309416 issued by the Arizona Registrar of Contractors (Registrar).

On or about January 1, 2019, Quirino Cabrera (Complainant) entered into a contract with Respondent for a swimming pool renovation project. Neither party provided the Administrative Law Judge with a copy of the written contract.

On or about March 9, 2020, the Registrar received a Complaint against Respondent from Complainant alleging poor work with respect to the project.

The Registrar assigned the complaint to Investigator Chris Fultz. Investigator Fultz conducted a jobsite inspection and, based on his observations, issued a written directive with a deadline of May 15, 2020.

After receiving the directive, Complainant questioned Investigator Fultz’s findings as to the ponding issue presented in the complaint. Investigator Fultz sought advice and input from Investigator Lisa Melton because she had been involved with a prior complaint on this project.

On or about May 14, 2020, after a second jobsite inspection, Investigator Fultz issued an amended written directive to Respondent that provided as follows:

After investigation, the Registrar has substantiated that your work fails to meet minimum workmanship standards (see 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 3rd 2020.

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:

Compliance Item: 1 – Tile was not installed correctly, Water pools and the grout is falling away.

Investigator’s Observation: The grout along the north side of the patio where the strip drain and tile meet is falling apart. There seems to be a lipage [sic] issue at this location. This will need to be repaired by appropriate means. I conducted a new [ponding] test at the request of the homeowner. The area failed the test. The ponding on the patio by the west post will need to be repaired by appropriate means.

Governing Rules: ARS §32-1154 (A) (3), Poor work not performed in accordance with professional industry standards.

Following the issuance of the written directive, Respondent initially indicated it would take care of the issues identified. On or about June 3, 2020, Mr. Elzy told Investigator Fultz that the tile work was not Respondent’s responsibility under the contract.

Accordingly, after the deadline in the directive expired, Investigator Fultz was notified no 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 Fultz testified that he was relatively new to the Registrar and, as a result, had improperly conducted the ponding test during the first jobsite inspection. After discussing the matter with Investigator Melton, he redid the ponding test and determined the ponding was in excess of the Registrar’s standards. Investigator Fultz stated that he had not been provided with a copy of the contract and therefore, was unable to determine the exact scope of the work to be performed, but based on the information he obtained, he concluded that the tile work was Respondent’s responsibility.

Jeri Cabrera, Complainant’s wife, testified that the original contract included Kool Decking on the existing patio near the pool, but at some point Mr. Elzy decided he was not going to do the Kool Decking. According to Ms. Cabrera, Mr. Elzy came up with the idea of laying tile on the patio as a compromise. Ms. Cabrera acknowledged there was no written contract regarding the tile work, but asserted that the text messages she exchanged with Mr. Elzy constituted the terms of their agreement. In his text messages regarding the proposal, Mr. Elzy indicated he needed to discuss the idea with “his guys”. Mr. Elzy also texted Ms. Cabrera that he had the “grind” scheduled for May 14, 2019, and the tile scheduled for May 17, 2019, and that he had asked “Ishmall” to be “extremely clean.” Ms. Cabrera testified that Luis Amador installed the tile, and denied that she ever paid Mr. Amador directly for the work. Ms. Cabrera also indicated that Mr. Elzy stated during a different jobsite inspection by Investigator Melton that Mr. Amador was a subcontractor, but when questioned about Mr. Amador’s license with the Registrar, Mr. Elzy indicated that Mr. Amador was an employee.

Mr. Elzy asserted that Kool Decking was not in the contract for the swimming pool, but indicated that he agreed to grind the patio to help Ms. Cabrera. Mr. Elzy denied that he ever agreed to perform the tile work on the patio. Mr. Elzy stated that he hired Mr. Amador to perform the tile work on the pool, but denied sending Mr. Amador out to tile the patio. Mr. Elzy testified that he was unaware that his office staff was trying to schedule the repair work following the amended directive and that, when he discovered her efforts, he told her to stop because Respondent was not responsible for the tile work on the patio. Mr. Elzy acknowledged he did not attempt to explain to Investigator Fultz that Respondent was not responsible because it was not “worth his time to clarify” that it was not Respondent’s work to correct. Mr. Elzy asserted the parties did have a written contract, but he did not submit it to the Registrar or during the hearing because the tile work on the patio was not part of the contract.

Administrative notice is taken of Respondent’s prior License record on September 22, 2020. Such prior License record reflects that Respondent’s License No. 309416 was first issued on October 18, 2016, and is active. Such prior License record also reflects that there were two open complaints, one resolved/settled complaint, and one complaint resulting in discipline 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 evidence established that Respondent entered into a contract, via text message, with Ms. Cabrera for the tile work on the patio. The evidence also established that Respondent’s work on the patio 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 attempt to complete the corrective work 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. 309416 for a period of five 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)(5), 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 40 days from the date of that certification.

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-137160-45720000Done this day, September 23, 2020.

/s/ Tammy L. Eigenheer

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors

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-137160-45720000