ALJDEC decisions subject to certification as final
2021A-01164-CHC-ROC · Registrar of Contractors · 2021-11-16
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
Heather Fordyce,
COMPLAINANT,
v.
Imperial Pools And Design LLC
License No. ROC 316814,
RESPONDENT.
No. 2021A-01164-CHC-ROC
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: October 28, 2021
APPEARANCES: Complainant Heather Fordcye appeared on behalf of herself. Patrick Rafferty Chrone appeared on behalf of Respondent Imperial Pools and Design, LLC.
ADMINISTRATIVE LAW JUDGE: Velva Moses-Thompson
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FINDINGS OF FACT
1. On December 2, 2017, the Arizona Registrar of Contractors (ROC) issued General Residential B General Residential Contractor license number 316814 to Respondent Imperial Pools And Design LLC (Imperial).
2. At all times relevant to this matter, Patrick Rafferty Chrone was the qualifying party for Imperial.
3. On or about July 29, 2019, Imperial agreed to install a new pool at Complainant Heather Fordyce’s residence.
4. Imperial did not provide Ms. Fordyce with a written contract that
advised Ms. Fordcye of her right to file a complaint with the Registrar against Imperial for an alleged violation of Arizona Revised Statutes (A.R.S.) § 32-1154(A) within the time allowed A.R.S. § 32-1155(B).
5. Imperial did not provide Ms. Fordcye with a written contract that included the estimated date of completion, contact information for the ROC, nor Imperial’s signature.
6. On or about August 23, 2019, Imperial began installing the pool.
7. On or about February 25, 2020, Imperial stopped work.
8. On or about March 17, 2021, Ms. Fordyce filed a complaint with the Registrar alleging poor workmanship on the part of Imperial. Through the complaint,
Ms. Fordyce alleged that the pool equipment installed by Imperial was sinking on the left side.
9. On March 30, 2021, Investigator John Smith conducted an initial job-site inspection. Investigator Smith substantiated compliant item 1. Investigator Smith observed that the pool contract did not comply with the requirements of A.R.S. 32-1158.01. Investigator Smith observed the following deficiencies regarding the payment schedule under the contract:
(1) The second payment was due on the day of excavation, not at the completion of excavation.
(2) The third payment was due at the first inspection, not at the completion of steel, plumbing, and concrete.
(3) The fourth payment was due prior to deck, not after completion of decking.
10. On March 30, 2021, the Registrar issued a Directive to Imperial. The Directive provided, in relevant part, as follows:
After investigation, the Registrar determined that you failed to meet the requirements of 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 April 29, 2021.
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You are directed to remedy the following violations by the appropriate means: Complaint Item 1: “Poor Quality of work-pool equipment was set by Imperial and is now sinking into the ground on the left side. Imperial refuses to take responsibility and fix the issue.”
Investigator’s Observation: Verified: The pool heater is out of level 1/4 inch per foot, leaning towards the pool filter. The platform with the pool filter and pump is out of level 3/4 inch per foot, leaning towards the heater. All drainage from the back yard and patio area is directed/draining towards and around the north side of the house, and then out to the street.
ADDITIONAL VIOLATIONS In addition to the allegations in the complaint, the following violations were discovered: Warning Letter: Elements of a Contract. Investigator’s Observation: The respondent’s contract is missing the following information: • An estimated date of completion • Information about the customer’s right to file a complaint with the registrar • Contact information for the registrar • A signature of the contractor
Governing Rule: A.R.S. § 32-1154 (A) 12, Namely A.R.S. § 32-1158(A) Minimum Elements of a Contract. Pool equipment is installed/placed on the north side of the house, in the drainage path.
Prior to this complaint being filed with the ROC, the respondent started to remove dirt and decorative rock from below and around the pool equipment. This work remains incomplete. The respondent’s written response to this complaint states “...the issue is regarding a drain line out in by a different contractor...” • As explained by the complainant, there was an underground drain pipe installed by a separate contractor, however; that drain pipe was installed prior to the installation of the pool equipment, and was installed to the specific instructions of the respondent. • Currently there is no evidence of where any underground drain pipe is located, or where any underground drain pipe terminates. • There is also no evidence of any underground drain pipe having any effect on the pool equipment.
Governing Rule: A.R.S. § 32-1154 (A) 3 (a): Violation of any rule adopted by the registrar, Namely R 4- 9-108: (A) A contractor shall perform work in a professional and workmanlike manner.
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REQUIRED CORRECTIVE ACTION: The respondent is to submit a copy of a current contract form that complies with the provisions of A.R.S. § 32-1158 and § 32-1158.01
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Warning Letter: Pool Contract.
Investigator’s Observation: The respondent’s contract is missing provisions 1, 3, and 4
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Governing Rule: A.R.S. § 32-1154 (A) 12 Namely A.R.S. § 32-1158.01 Swimming pool; spa; construction contracts
REQUIRED CORRECTIVE ACTION: The respondent is to submit a contract form that complies with the provisions of A.R.S. A.R.S. § 32-1158 and § 32-1158.01
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11. Imperial failed to comply with the ROC’s Directive by the due date.
12. On April 30, 2021, Investigator Smith recommended that the ROC’s legal department issue a Citation against Imperial’s license.
13. On May 4, 2021, the Registrar of Contractors, (ROC), issued a Citation against Imperial’s license. Through the Citation, the ROC alleges that Respondent Imperial may have violated A.R.S. § 32-1154(3) (specifically, Ariz. Admin. Code section R4-9-108(a); A.R.S. §§ 32- 1154(A)(12), (16), (17), and (22); A.R.S. § 32-1158 and A.R.S. § 32-1158.01.
15. Imperial filed an answer to the Citation.
16. The matter was referred to the Office of Administrative Hearings for an
evidentiary hearing.
17. A hearing was held on October 28, 2021.
18. At hearing, Ms. Fordyce testified on behalf of herself and presented the testimony of her husband, Jason Fordyce. Mr. Chrone testified on behalf of himself. Investigator Smith provided testimony regarding his investigation of the complaint, the issuance of the Directive, and his recommendation that a Citation be issued against the license of Imperial.
19. Investigator Smith observed that the heater and filter installed by Imperial were sinking into the ground. Investigator Smith observed that the heater was 1⁄4 and inch out of level and the pool filter and pump were 3⁄4 an inch out of level. Investigator Smith observed that the drainage from the pool was directed to the north side of the house and out to the street.
20. Investigator Smith explained that Imperial alleged that the pool equipment was sinking due to a drain line installed by a different contractor. However, Investigator Smith explained that there was no proof that the drain line caused the sinking because there was no proof where the drain line was located and where it ended. Furthermore, the drain line was installed prior to the installation of the pool equipment.
21. Investigator Smith reviewed text messages that were exchanged between Ms. Fordyce and Imperial regarding the project. See Investigator’s Smith’s testimony at 11:15 minutes to 13:41 minutes on the hearing audio record. Investigator Smith explained that Imperial believed that the pool equipment was sinking for three different reasons. Imperial alleged that Complainant was backwashing the pool in the incorrect area. The backwash valve was originally pointed to a block wall in the backyard as opposed to the street. Investigator Smith explained that the pool needed to be backwashed once a week. Therefore, Complainant was limited to backwashing the pool in the backyard toward the block wall. Imperial later returned and extended the pipe to point in the correct direction. Imperial also alleged that a block wall was built in the area of the pool equipment. However, the block wall was a significant distance from the pool equipment. Investigator Smith stated that the wall was built after the pool equipment. Investigator opined that the block wall was so far away that it not the reason for the problem that Ms. Fordcye experienced. Imperial also alleged that paver work was one in the area of the pool equipment, but such paver wok does not exit. See id..
22. Investigator Smith further opined that the sinking pool equipment did not meet industry standards because it should be level according to the International Resident Code section M1305.1.4.1. See Investigator Smith’s testimony at 9:40 - 9:44 minutes on the hearing audio record.
23. Investigator Smith explained that a Citation was issued against Imperial for an alleged violation of A.R.S. § 32-1164(A)(16) and (17) because the ROC received a contract from Imperial that showed that Imperial was contracting beyond the scope of his pool contractor’s license and his general contractor’s license was suspended. See Investigator Smith’s testimony at 8:08 minutes to 9 minutes. Because Imperial’s general contractor’s license was reinstated effective May 18, 2021, Investigator Smith opined that the alleged violations of A.R.S. § 32-1164(A)(16) and (17) should not be applied to Ms. Fordyce’s complaint against Imperial.
24. Investigator Smith explained that he issued a Warning Letter to Imperial because Imperial’s contract with Ms. Fordyce did not comply with A.R.S. § 32-1158 and A.R.S. § 32-1158.01. See Investigator Smith’s testimony on the audio record at 6:30 – 8:10 minutes. On April 26, 2021, Imperial submitted a revised contract to the ROC. However, the revised contract did not provide an acceptable estimated date of completion. In addition, the revised contract did not display in prominent form and in at least a 10 point bold type the information regarding how to contact the ROC and how to file a complaint against the contractor with the ROC. Imperial did not submit a contract that complied with A.R.S. § 32-1158 and A.R.S. § 32-1158.01. See id.
25. Mr. Fordcye asserted that the block wall and double gate was built prior to the installation of the pool equipment. Mr. Fordcye stated that the drain gutters are not attached the drain line. Mr. Fordcye stated that the drain line is located between the pool and the house. Mr. Fordcye also testified that Imperial told the contractor who installed the drain how to perform the installation.
26. Mr. Chrone initially asserted that the pool equipment was sinking because of the faulty drain line. After evidence was provided at hearing that the drain line was not attached to the gutters, Mr. Chrone stated that he believed that the issue of the drained line was not relevant. However, Mr. Chrone maintained that Imperial did not perform poor work in connection with the pool installation project.
27. Administrative notice is taken of Respondent’s prior License record on November 16, 2021. Such prior License record reflects that Respondent’s License
No. 316814 is revoked. Such prior License record also reflects that there are eighteen open complaints against License No. 316814, and twenty-five complaints that resulted in discipline against License No. 316814. Such prior License record reflects that nine complaints against License No. 316814 were resolved or settled by Respondent or withdrawn by the complainant after issuance of a corrective work or formal citation.
CONCLUSIONS OF LAW
The Registrar has jurisdiction over this matter, pursuant to of A.R.S. § 32-1101,
et seq., which authorizes the Registrar to impose disciplinary sanctions against licenses for violations of Ariz. Rev. Stat. section 32-1154.
The revoked status of Respondent’s license does not deprive Complainant
of his right to prosecute the Complaint or prevent the Registrar from determining the merits of Complainant’s complaint. This matter lies within the Registrar’s jurisdiction.
To warrant such sanctions by the Registrar, Complainant must demonstrate
by a preponderance of the evidence that Respondent violated the statutory section cited. Proof by a “preponderance” means that “the evidence is sufficient to persuade the finder of fact that the proposition is more likely true than not.” In re: Arnold and Baker Farms, 177 B.R. 648 (9th Cir. BAP (Ariz.) 1994). See also Culpepper v. State of Arizona, 187 Ariz. 431, 930 P.2d 508 (App. 1996). It is “evidence which is of greater weight or more convincing than the evidence which is offered in opposition to it; that is, evidence which as a whole shows that the fact sought to be proved is more probable than not.” Black’s Law Dictionary 1182 (Rev. 6th ed. 1990).
The preponderance of the evidence shows that Respondent did not perform
Construction work in a professional and workmanlike manner in violation of A.A.C. R4-9-108(a), and thereby of A.R.S. § 32-1154(A)(3).
5. The undisputed evidence established that Respondent’s contract did not comply with A.R.S. § 32-1154(A)(12), A.R.S. § 32-1158, and A.R.S. § 32-1158.01.
6. 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 in this matter, License No. 316814 of Imperial Pools and Design, LLC is revoked.
It is further recommended that the Registrar require Respondent to pay the sum of $500.00 as a civil penalty.
It is further recommended that 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, November 16, 2021.
/s/ Velva Moses-Thompson
Administrative Law Judge
Transmitted electronically to:
Jeffrey Fleetham, Director
Registrar of Contractors