ALJDEC decisions subject to certification as final

2020A-05591-CHC-ROC · Registrar of Contractors · 2021-04-22

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

James P McGowan,

COMPLAINANT

Valley Rain Pools & Landscape LLC

License No. ROC 323778,

RESPONDENT

No. 2020A-05591-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: April 12, 2021

APPEARANCES: Complainant James McGowan appeared via Google Meet on his own behalf. Roberto Ibarra, Jr. appeared via Google Meet on behalf of Respondent Valley Rain Pools & Landscape LLC. David Fagerburg, Registrar of Contractors Investigator, appeared via Google Meet.

ADMINISTRATIVE LAW JUDGE: Adam D. Stone

_____________________________________________________________________

FINDINGS OF FACT

Valley Rain Pools & Landscape LLC (Respondent) is the holder of License No. 323778 issued by the Arizona Registrar of Contractors (Registrar).

On or about April 6, 2020, James McGowan (Complainant) signed a contract with Respondent for construction of a pool and surrounding deck in the backyard. The contract amount was for $35,496.80.

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

The Registrar assigned the complaint to Investigator David Fagerburg. The jobsite inspection was performed on December 21, 2020.

Investigator Fagerburg then issued a written directive on or about December 28, 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 Friday 1-29-2021.

. . .

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

Compliant Item 1: Negligence: Damaged dining room and bedroom windows by cutting travertine directly in front of the windows sending sparks and chips flying into the windows. Also they mixed and poured concrete in same area. Windows have hundreds of little pot holes in them. Valley Rain have admitted liability and Robert Ibarra said he would run it through his insurance company. We have contacted Robert on many occasions by e-mail, text and via phone. We have it in writing via mail and text message that he accepted responsibility but is now avoiding all of our communication. The window company was out today to measure for new windows we are waiting on the estimate. Once we get the estimate the attorney will be sending a letter to Valley Rain.

Investigator’s Observation: I was able to verify that the window glass at the dining room and bedroom windows have hundreds of little pot holes/scars and the screens are damage. In the documentation provided, the respondent acknowledged the damage and has not made the repairs. The respondent is to correct the damaged window glass and screens by appropriate means.

Governing Rule: ARS §32-1154 (A) (3) Poor work

Compliant Item 3: Raised patio:

The raised patio was constructed way too close to the pool, this was very concerning because if someone fell down the step they could fall into the pool (it also probably would not have passed code). The deck had also been constructed with two steps instead of three steps front and rear. We told Robert the whole area had to be moved back as it is dangerous and construct it with 3 the original three steps. Robert informed us if we wanted to change it, it would cost us $1,800.00. He would not accept responsibility and stated the plan is conceptional and we cannot go from that. We shut the job down temporarily (4 or 5 days). Eventually we agreed to the extra cost but that did not include changing the rear steps to three, unless we paid more money. We refused, so the front of the raised area was moved back from the pool and three steps were constructed. He refused to change the steps at the rear as we would not pay the additional money. So the raised area does not match we have three steps at the front and two steps at the back. Robert did not give us a new work order for this although we kept asking, he said he would e-mail it to us and he never did. However, we do have the check for proof. The two steps at the rear look ugly, they are high and that was not what we wanted.

Investigator’s Observation: I was able to verify that the complainant paid $1,800.00 for the modification to the raised patio and it was not modified with 3 steps on both sides of the patio per the written estimate provided. The respondent is to complete the project per the written estimate.

Governing Rule: ARS §32-1154 (A) (3) Poor work ARS §32-1154 (A) (16) (Out of Scope)

(All errors contained in the original)

On January 28, 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 17, 2021, Respondent e-mailed an Answer to the Registrar.

On or about March 11, 2021, a Notice of Hearing was issued setting a hearing on April 12, 2021, at the Office of Administrative Hearings, an independent state agency.

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

Investigator Fagerburg testified that there was no representative from Respondent at the jobsite inspection.

In addition, Investigator Fagerburg testified that a compliance inspection was not performed as Complainant informed him that Respondent had not made any of the corrections.

Investigator Fagerburg testified that the time to complete the directive was reasonable.

As to the issue with regard to the steps on the deck, Investigator Fagerburg believed that the change order on June 12, 2020, called for three steps on the pool side of the patio and three steps on the back of the patio.

Complainant testified on his own behalf as well as his wife, Linda McGowan. Complainant testified that as to the steps, the original 3D rendering that was done showed three steps in the front and three in the back. Once the patio was completed, Complainant informed Respondent that it was too close to the pool and that there were only two steps on each side.

Complainant testified that in June 2020, the parties had agreed to move the patio and have three steps on the pool side of the patio, and to rebuild the back two steps for $1,800.00.

As to the windows, Complainant testified that when Respondent was cutting the travertine tile, chips would fly into the windows, thus creating hundreds of pot marks in the windows. Complainant testified that Respondent’s insurance company look was to look at the windows but this never occurred.

In addition, Complainant testified that during the directive period, Respondent never reached out and the last communication was from Respondent’s written answer on February 4, 2021.

Finally, Complainant testified that he did not want to see Respondent lose its license over this claim.

Roberto Ibarra, Jr. testified on behalf of Respondent.

Mr. Ibarra testified that as to the steps, the job was designed by an ex-employee. Mr. Ibarra testified that the 3D drawing was just a sample, but the 2D drawing was the actual plan and the one submitted to obtain permits.

In addition, Mr. Ibarra testified he agreed that the steps were too close and agreed to “eat some of the cost” to make the repairs per the June 12, 2020 change order.

Mr. Ibarra testified that he did not appear at the jobsite inspection as he was overwhelmed because he knew where the Complaint was headed and that he could not get the work completed.

Mr. Ibarra testified that he was responsible for the marks in the windows but could not afford to pay Complainant for the repairs. He further testified that his insurance company would not pay until they spoke with the worker who damaged the window, but because he did not know which worker caused the damage, this never materialized.

Administrative notice is taken of Respondent’s prior License record on April 22, 2021. Such prior License record reflects that Respondent’s License No. 323778 was first issued on March 9, 2019, and 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 preponderance of the evidence established that Respondent’s work was not in conformity with the Registrar’s standards. Mr. Ibarra 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 and Mr. Ibarra admitted that he failed to complete the corrective work following the Directive being issued as to the windows. Therefore, Complainant established that Respondent failed to take appropriate corrective action to repair the windows in violation of A.R.S. § 32-1154(A)(22). As to the patio steps, the evidence established that the steps were properly completed per the June 12, 2020 change order and that the parties agreed to keep the two steps at the back of the patio. Therefore, there is no violation of A.R.S. § 32-1154(A)(22) for the patio steps.

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. 323778 for a period of four days.

It is further recommended that the Registrar require Respondent to pay the sum of $400.00 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 22, 2021.

/s/ Adam D. Stone

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors

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-137160-45720000