ALJDEC decisions subject to certification as final

2020A-03203-CHC-ROC-RES · Registrar of Contractors · 2021-01-22

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Leanne Beth Appeldorn

COMPLAINANT,

v.

Legend Pool Builders, Inc.,

License No. 213464,

RESPONDENT.

No. 2020A-03203-CHC-ROC-RES

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: January 4, 2021

APPEARANCES: Complainant Leanne Beth Appeldorn appeared on behalf of herself. Scott Bowman appeared on behalf of Respondent Legend Pool Builders, Inc. (Legend).

ADMINISTRATIVE LAW JUDGE: Velva Moses-Thompson

_____________________________________________________________________

FINDINGS OF FACT

1. Legend holds license number 213464, (a B-5 General Swimming

Pool Contractor’s license), issued by the Registrar of Contractors (Registrar).

2. Scott Bowman is Legend’s qualifying party.

3. On or about February 1, 2020, Complainant Leanne Beth Appeldorn and Legend entered into a contact wherein Legend would install a pool at Ms. Appeldorn’s home and relocate two pergolas.

4. Legend did not provide Ms. Appeldorn with a written contract that advised

Ms. Appeldorn of her right to file a complaint with the Registrar against Legend for an alleged violation of Ariz. Rev. Stat. section 32-1154(A) within the time allowed by Ariz. Rev. Stat. section 32-1155(B).

5. On or about February 12, 2020, Legend started work.

6. On or about June 19, 2020, Legend stopped work.

7. On or about July 2, 2020, the Registrar received a complaint from

Ms. Appeldorn alleging extreme delays in connection with a pool construction contract.

8. On July 22, 2020, Registrar Investigator Daniel Edwards conducted a job-site inspection.

9. On or about July 22, 2020, Investigator Edwards issued a Directive against Legend’s license.

10. On or about August 5, 2020, the Registrar received a complaint addendum from Ms. Appeldorn.

11. On or about August 11, 2020, Investigator Edwards conducted a second job-site inspection.

12. On August 12, 2020, Investigator Edwards issued a new Directive against Legend’s license to incorporate the addendum items. The August 12, 2020 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 August 30, 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 reasons1, 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: 4 - Contract stated we would receive the Screen Logic for operating the equipment, never provided

Investigator’s Observation: This allegation was originally ordered to be corrected in the original directive dated 7/22/2020 and was observed to still be incomplete as of the 8/11/2020 addendum inspection. Original contract

between parties calls for installation of a Screen Logic control system. At jobsite inspection I did not observe any evidence showing that the Screen Logic system has been supplied or installed by Respondent. No information has been

provided to me which would indicate this has been removed from the scope of the contract between parties. Respondent shall install the Screen Logic system by appropriate means and per original contract.

Governing Rule: Violation of any rule adopted by the Registrar; Namely A.A.C. R4-9-108(a): A contractor shall perform all work in a professional and workmanlike manner.

Compliance Item: 5 - Contract included relocating 2 pergolas, only one was done.

Investigator’s Observation: This allegation was originally ordered to be corrected in the original directive dated 7/22/2020 and was observed to still be incomplete as of the 8/11/2020 addendum inspection. Contract between

parties calls for relocation of (2) pergolas. One pergola has been relocated and was observed as complete. The second pergola has been deconstructed and is currently disassembled on the side of the property. Respondent shall correct by appropriate means and per the original contract.

Governing Rule: Violation of any rule adopted by the Registrar; Namely A.A.C. R4-9-108(a): A contractor shall perform all work in a professional and workmanlike manner.

Compliance Item: 9 - Contract states upgrade to ozone + UV sanitizer system, not installed.

Investigator’s Observation: At addendum inspection it was observed that this system has not been installed to date. In a phone call with Respondent post-inspection, it was acknowledged that this system is a part of their contract

and he intends to install it. Respondent shall correct by appropriate means.

Governing Rule: Violation of any rule adopted by the Registrar; Namely A.A.C. R4-9-108(a): A contractor shall perform all work in a professional and workmanlike manner.

Compliance Item: 10 - Contract states raised water feature wall with 72 inch sheer dissent (a 55 inch was installed) and 2 scupper (scuppers never provided)

Investigator’s Observation: It was observed that Respondent did not install a 72" water feature, as agreed upon in the written contract between parties. The scuppers were addressed previously and since Complainant paid

for the materials which have been installed by subcontractors, the scupper issue is a financial dispute which the ROC has no jurisdiction over. Respondent shall correct the sheer dissent water feature by appropriate means and per original contract.

Governing Rule: Violation of any rule adopted by the Registrar; Namely A.A.C. R4-9-108(a): A contractor shall perform all work in a professional and workmanlike manner.

Compliance Item: 11 - Grout is missing in several places on the travertine decking

Investigator’s Observation: There were several deck tiles observed to be missing grout throughout the deck, namely the tiles at the east end of the pool deck and group of tiles located at the midsection of the north end of the pool deck. Respondent shall correct by appropriate means.

Governing Rule: Violation of any rule adopted by the Registrar; Namely A.A.C. R4-9-108(a): A contractor shall perform all work in a professional and workmanlike manner.

Compliance Item: 13 - Start up never completed. Unable to tell if everything is working (ie: auto leveler, skimmers, timer, salt cell/generator)

Investigator’s Observation: The pool has been filled with water and at least some pumps and plumbing appear to be operational. Complainant mentioned at inspection that the automatic leveler appeared to not be working as the pool appeared to be losing water and she has had to fill the water with the hose on at least one occasion to keep the water level at the desired level. While this was not able to be verified at inspection, given that some components of the pool have not been installed to date (ex. Screen Logic automation system) and that debris was observed to have settled in areas

where the popups should be dispersing it, Respondent should test and ensure that the pool system is working as intended and in accordance with the original contract.

Governing Rule: Violation of any rule adopted by the Registrar; Namely A.A.C. R4-9-108(a): A contractor shall perform all work in a professional and workmanlike manner.

13. On or about September 3, 2020, Investigator Edwards conducted a job-site compliance inspection. Investigator Edwards concluded that Legend failed to correct the items listed in the Directive.

14. On or about September 3, 2020, Investigator Edwards conducted a compliance job-site inspection. Investigator Edwards concluded that Legend failed to correct the items listed in the Directive.

15. On or about September 4, 2020, the Registrar issued a Citation against Legend’s license. Through the Citation, the Registrar alleged that Legend may have violated Ariz. Rev. Stat. section 32-1154(A)(3) Namely A.A.C. R4-9-108(a); Ariz. Rev. Stat. § 32-1154(A)(12) - Ariz. Rev. Stat. § 32-1158; Ariz. Rev. Stat. § 32-1158; Ariz. Rev. Stat. section 32-1154(A)(16); Ariz. Rev. Stat. section 32-1154(A)(22).

16. Legend filed a timely answer to the Citation.

17. On December 2, 2020, the Registrar issued a Notice of Hearing setting the matter for hearing on January 4, 2021.

18. A hearing was held on January 4, 2021.

19. At hearing, Ms. Appeldorn testified on behalf of herself. Investigator Edwards testified regarding his investigation of the complaint and the issuance of the Directive. Investigator Edwards explained that Legend’s work failed to meet minimum workmanship standards and that Legend failed to comply with the Directive.

Mr. Bowman testified on behalf of Legend.

20. Ms. Appeldorn asserted that Legend performed poor work and unnecessarily delayed completion of the pool construction project.

21. Mr. Bowman did not dispute the information provided in Investigator Edwards’s testimony. Mr. Bowman stated that he and some members of his crew contracted COVID-19 in June of 2020. Mr. Bowman asserted that there were “quarantine” and “stay at home orders.” Mr. Bowman stated that the project was delayed due to the COVID-19 pandemic. Mr. Bowman asserted that at certain times, Ms. Bowman did not want to pay according to the Registrar’s requirements for draw payments. Mr. Bowman stated that the screen logic is not installed until the pool is completed. Mr. Bowman testified that he did not install the screen logic because Ms. Appeldorn failed to make the last payment.

22. Administrative notice is taken of Legend’s license record. Legend’s license record as reflected on January 22, 2021 shows that Legend’s license was first issued on November 22, 2005 and is active. Legend’s license has never been disciplined.

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 shows that Respondent did not perform

the work in a professional and workmanlike manner in violation of A.A.C. R4-9-108, and thereby of A.R.S. § 32-1154(A)(3).

4. The undisputed evidence established that Legend’s contract did not include a statement that the property owner has the right to file a written complaint with the Registrar for alleged violations of Ariz. Rev. Stat. section 32-1154(A), which is a violation of Ariz. Rev. Stat. section 32-1154(A)(12) and Ariz. Rev. Stat. section 32-1158.

5. The preponderance of the evidence shows that Respondent contracted

beyond the scope of its General Swimming Pool Contractor license, which is a violation of Ariz. Rev. Stat. section 32-1154 (A)(16).

6. Mr. Bowman testified at hearing that he contracted COVID-19 in June of 2020 along with some of his crew. However, Mr. Bowman provided no information regarding the length of time that he and his crew were ill or were required to quarantine. There is insufficient evidence to conclude that Legend had valid justification for failing to comply with the Directive due to the COVID-19 pandemic. The preponderance of the evidence shows that Respondent failed to comply with the Registrar’s Directive without valid justification, which is a violation of Ariz. Rev. Stat. section 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 License No. 213464 issued to Legend for three days. It is further recommended that the Registrar require Respondent to pay the sum of $500.00 as a civil penalty pursuant to Ariz. Rev. Stat. section 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 Ariz. Rev. Stat. section 32-1101(A)(7), unless Respondent tenders payment of any outstanding prior civil penalty.

Done this day, January 22, 2021.

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.

/s/ Velva Moses-Thompson

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors