ALJDEC decisions subject to certification as final

2020A-05272-CHC-ROC · Registrar of Contractors · 2021-04-26

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Marciann Lynn Roohparvar,

COMPLAINANT

R & D Appel LLC

DBA: The Edge Pools,

License No. ROC 213782,

RESPONDENT

No. 2020A-05272-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: April 13, 2021

APPEARANCES: Complainant Marciann Lynn Roohparvar appeared on her own behalf via Google Meet. Randy Appel appeared via Google Meet on behalf of Respondent R & D Appel LLC. Wes Ellington, Investigator for the Registrar of Contractors appeared via Google Meet.

ADMINISTRATIVE LAW JUDGE: Adam D. Stone

_____________________________________________________________________

FINDINGS OF FACT

R & D Appel LLC (Respondent) is the holder of License No. 213782 issued by the Arizona Registrar of Contractors (Registrar).

On or about April 8, 2019, Marciann Lynn Roohparvar (Complainant) signed a contract with Respondent for construction of a pool in her backyard. The contract amount was for $151,500.00.

On or about November 6, 2020, the Registrar received a Complaint containing three items against Respondent from Complainant alleging poor work with respect to project. Complainant also filed an addendum to the Complaint alleging problems with the fire pots around the pool.

The Registrar assigned the complaint to Investigator Wes Ellington. The jobsite inspection for the original Complaint was performed on December 4, 2020 and the addendum inspection was completed on December 30, 2020.

Investigator Ellington then issued a written directive on or about December 31, 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 February 1, 2021.

. . .

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

Complaint Item: 2. Mini Pebble after 3 acid washes has become porous and continues stain throughout the pool.

Investigator’s Observation: Verified. There is a long section of interior finish in the center area of the pool that is stained as well as several other small areas. After several acid washes the stain reappears indicating an issue with the finish itself. Additionally, several repair patches have been completed using plaster. These patches are unacceptable and are not what a reasonable person would expect from a new pool. The corrections/repairs should be of the same material and blend with the rest of the interior finish. These issues will need to be corrected by the respondent.

Governing Rule: Workmanship Rule: ARS §32-1154 (A) (3), namely R4-9-108, Poor work not performed in accordance with professional industry standards.

ADDENDUM: On 12/30/2020, an addendum inspection was completed for one additional issue.

Complaint Item: A1. Automatic fire pots do work consistently when turned on using OmniLogic app. Either due to not enough gas to ignite or faulty product.

Investigator’s Observation: Verified. The right fire pot ignites within a minute or so, while the left fire pot takes an extended amount of time. The left fire pot eventually lit, but then went out again. After a few minutes, the left pot ignited again and both burned for several minutes. Both were turned off for several minutes, then re-ignited with the left pot taking a considerable amount of time before lighting. The Complainant stated that this happens frequently and that the left pot will sometimes burn for 15 minutes, then go out. There is apparently an issue with the system that needs repair. This will need to be corrected by the respondent.

Governing Rule: Workmanship Rule: ARS §32-1154 (A) (3), namely R4-9-108, Poor work not performed in accordance with professional industry standards.

(All errors contained in the original)

On February 4, 2021, Investigator Ellington completed a compliance jobsite inspection. In his notes regarding the same, Investigator Ellington noted that both directive items had not been corrected and, “[t]he Respondent was given 30 days to correct the issues, but waited until the last week to start. This created scheduling issues where the Respondent wanted to schedule work with very little or no warning without regard for the Complainant’s schedule.”

On February 17, 2021, 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 February 24, 2021, Respondent e-mailed an Answer to the Registrar.

On or about March 10, 2021, a Notice of Hearing was issued setting a hearing on April 13, 2021 at the Office of Administrative Hearings, an independent state agency.

Investigator Ellington testified as to his involvement and the above timeline.

Investigator Ellington testified that the time to complete the directive was reasonable, and that the corrective work required approximately two to three days.

As to the issue with regards to the pool, Investigator Ellington testified that after four acid washings and one dry acid wash, something else should have been tried to correct the staining. He further testified that during one of the acid washings, a white substance stained the copper scuppers and he was not aware if this was repairable.

As to the firepots, Investigator Ellington testified they would not turn on consistently, and when they did, they would not remain lit. He noted that while they would both work separately he believed that the intent was to have both pots lit at the same time.

Finally, Investigator Ellington testified that it showed a lack of professionalism on Respondent’s part to wait until a week before the deadline to make an attempt to comply with the Directive.

Complainant testified on her own behalf. She testified that she experienced problems with the pool from the beginning. Complainant testified that she was running her cleaning system 13-14 hours daily, as well as utilizing a pool cleaning company once per week, as well as every day for about a month once the pool was completed.

Complainant testified that due to the staining, her pool looks “horrible” and the pool looks like it has “Leprosy”.

Complainant testified that on or about January 26, 2021, Respondent contacted her husband to schedule the corrective work. Complainant testified further that Respondent’s workers came out on January 29, 2021 and that after one hour, the workers left without correcting the problem. Complainant then testified that Respondent wanted an additional five hours to complete the work on February 1, 2021, but she was not available during that time period.

As to the firepots, Complainant testified that they did not work consistently. Further, Complainant testified that Respondent wanted to send his subcontractor out to fix the gas line, on January 28 through February 1, but Complainant did not have the four hours available due to her going back to work.

Randy Appel testified on behalf of Respondent. Mr. Appel testified that upon receiving the directive, he reached out to the pool subcontractor and the firepot subcontractor to try to schedule a time with Complainant. Mr. Appel testified however, that due to the demand in the construction industry, the subcontractors could not complete the work until towards the end of Janaury.

Mr. Appel testified that as to the firepots, he believed that there was debris in the gas line and his subcontractor needed only four hours and the pots would be corrected.

As to the pool stains, steps, Mr. Appel testified that his subcontractor was not available until the end of January. Mr. Appel also testified that he had the manufacturer of the pool come out to try to determine the cause of the stains.

Mr. Appel testified that his pool subcontractor believed that the acid washing would work, but did not take the advice of the manufacturer to take a sample of the pool surface to test for the defect.

Finally, Mr. Appel testified that his “hands are tied”, and that he needed someone to tell him what to do.

Administrative notice is taken of Respondent’s prior License record on April 26, 2021. Such prior License record reflects that Respondent’s License No. 213782 was first issued on December 16, 2005, and reflects that there is 1 open complaint, namely the present complaint. The License record also reflects that Respondent’s license was suspended twice in 2020.

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 established that Respondent’s work was not in conformity with the Registrar’s standards. Mr. Appel did not dispute that there were issues with the work performed. 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 waited several months for Respondent to attend to the issues even prior to filing the Complaint with the Registrar. While the boon in the construction industry is undoubtedly occurring, it was still Respondent’s obligation to ensure that the Directive was a priority. As to the pool stains, it was clear to Respondent that the multiple acid washings did not resolve the issue, and it is inexplicable why Mr. Appel would not take the advice of the manufacturer to take a sample to determine the cause for the stains. As to the firepots, again, Respondent should have done all he could to communicate the urgency to his subcontractor to complete the work. No evidence was presented that Mr. Appel made complying with the Directive a priority. Mr. Appel’s hands were not tied as he testified, and he was given direction as what he was to do, he just chose not to. 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. 213782 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)(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 30 days from the date of that certification.

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-137160-45720000Done this day, April 26, 2021.

/s/ Adam D. Stone

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors

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-137160-45720000