ALJDEC decisions subject to certification as final

2021A-00227-CHC-ROC · Registrar of Contractors · 2021-09-09

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Bradley Aaron Rief,

COMPLAINANT,

The Pool Remodelers LLC

dba TMC Custom Pools & Renovations,

License No. ROC 176870,

RESPONDENT.

No. 2021A-00227-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: August 18, 2021

APPEARANCES: Bradley Aaron Rief represented himself. CEO and General Counsel Michael J. Rogers, Esq., represented The Pool Remodelers LLC dba TMC Custom Pools and Renovations.

ADMINISTRATIVE LAW JUDGE: Kay Abramsohn

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FINDINGS OF FACT

The Pool Remodelers LLC dba TMC Custom Pools and Renovations (“Respondent”) is the holder of Class B-5 License No. 176870 issued by the Arizona Registrar of Contractors (“Registrar”).

Respondent is also the holder of Class A-9 License No. 210027 issued by the Registrar.

On or about July 16, 2020, Bradley Aaron Rief (“Complainant”) signed a contract with Respondent for construction of a swimming pool and water feature at his home for a total contract price of $72,493.06.

On or about January 19, 2021, the Registrar received a Complaint against Respondent from Complainant alleging abandonment and poor work with respect to the project.

The Registrar’s Investigator Steve Klein conducted a jobsite inspection on March 16, 2021. Mr. Klein inspected the complaint items and, after the jobsite inspection, Investigator Klein issued a written directive dated March 16, 2021 to Respondent that provided the following statements:

After investigation, the Registrar has verified that your work fails to meet minimum workmanship standards. A.R.S. § 32-1154(A) and now issues this Directive requiring you to take appropriate corrective action. 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 March 30, 2021.

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:

Complaint #1 The contractor reassured my wife and I that there was a full retaining wall the length of property and that the slope on NW corner of would be excavated and the entire wall would be "re-stuccoed". All design pictures depicted a flat yard with full retaining wall running the length. Contractor never inspected the wall to see if if was full length. I was reassured that the slope would be excavated, but never was. The lack of retaining wall was not discovered until the landscaper started "re-stuccoing" the wall.

Inspector’s Observation: Complainant provides text messages between the parties and rendering concerning corner excavation.

• Respondent shall complete project per original contract agreement, plans, specifications, properly executed change orders, verbal agreements and local building codes.

Complaint #2 The wall stucco cracked immediately upon completion. A courtesy complaint was filed with ROC and it was deemed that it did not meet industry standard and TMC was to correct the wall. Michael sent out the same landscaper the same day, 12-23, to assess the wall. He disclosed that the product applied was La Habra. On the manufactures instructions, this product was only to be applied to clean, non-painted surfaces. No prep work or cleaning was performed prior to application and the wall is painted. As the entire wall needed to redone, I requested a full refund of the improper work to expedite completion of this job. I have not heard from Michael since I requested a refund.

Inspector’s Observation: Verified stucco finish peeling off the wall and it appears to be painted underneath.

• Respondent shall apply stucco finish per manufacturers installation instructions.

ITEMS NOT REQUIRING CORRECTION

The following complaint items require no action by the Respondent:

Complaint #3 TMC pools has not completed the full scope of the project to this day. There still is a broken in floor cleaning head that needs replaced, the polymeric sand has not been applied to the travertine surface, the salt generator has not been installed, and final cleanup has not been performed. The contract stipulates completion of all work by 1-13-2021.

Inspector’s Observation: Complainant states this item was completed prior to the jobsite inspection.

Investigator Klein performed a compliance jobsite inspection on April 16, 2021. Investigator’s jobsite inspection observation had verified that the stucco finish was peeling off the wall and that “it appears to be painted underneath.” At the compliance inspection, Investigator Klein observed that the stucco work had been completed “except paint/color.”

The Registrar issued a Citation against Respondent, charging possible violations: (1). A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108(B); and (2). A.R.S. § 32-1154(A)(22).

Although the parties participated in a telephonic informal settlement conference, the matter was not resolved by the parties prior to an administrative hearing.

At hearing, while testifying about the remaining complaint item, the presented photographs, and his compliance inspection finding, Investigator Klein realized that he had erroneously stated that “paint” was required on the wall. Investigator Klein testified that he should not have called for compliance with regard to “paint” and, had he realized this at the time of the compliance inspection, he would not have referred the matter for citation.

The parties’ contract included a specification to “Restucco Existing [wall] Sand Finish.” The parties’ contract did not include a specification for painting the restuccoed wall.

At hearing, Complainant acknowledged that their contract did not include a specification for painting the restuccoed wall.

Administrative notice is taken of Respondent’s license records on September 9, 2021. Such prior License record reflects: (1) Respondent’s License No. 176870 was first issued on July 24, 2002 and is renewed through July 31, 2022; and, (2) Respondent’s License No. 210027 was first issued on July 22, 2005 and is renewed through July 31, 2023. Respondent’s licensure records also reflects that the instant complaint is the only open complaint against either 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 Vazzano 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 the parties’ contract did not contain any provision or specification for a painted restuccoed wall. Therefore, Complainant failed to establish 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(B).

The evidence failed to establish that Respondent did not complete the corrective work following the directive being issued. Therefore, Complainant failed to establish that Respondent had 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 the Registrar dismiss and close the matter without any discipline on either of Respondent’s licenses

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 9, 2021.

/s/ Kay Abramsohn

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors

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