ALJDEC decisions subject to certification as final

2021A-01417-CHC-ROC · Registrar of Contractors · 2021-09-13

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Yonker Construction LLC,

COMPLAINANT

New Image Landscape and Pools LLC

License No. ROC 247546,

RESPONDENT

No. 2021A-01417-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: August 24, 2021

APPEARANCES: Dan Yonker, Owner, appeared on behalf of Complainant Yonker Construction LLC. Jared Strother, Project Manager, and Stacey Stewart, Officer, appeared on behalf of Respondent New Image Landscape and Pools LLC.

ADMINISTRATIVE LAW JUDGE: Tammy L. Eigenheer

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FINDINGS OF FACT

New Image Landscape and Pools LLC (Respondent) is the holder of License No. 247546 issued by the Arizona Registrar of Contractors (Registrar).

On or about March 27, 2020, Yonker Construction LLC (Complainant) signed a contract with Respondent for the construction of a new swimming pool and spa at a home that was ultimately purchased by Deborah Guiney.

Prior to Respondent constructing the swimming pool, a representative of Complainant, a representative of Respondent, and Ms. Guiney met at the property when, according to Ms. Guiney the yard was just “a field of grass.” Ms. Guiney provided Respondent with a photograph of the swimming pool and spa she had at her prior home and was exactly how she wanted the new swimming pool and spa to look. Ms. Guiney’s photograph and desire for the project was to have a waterfall effect the entire length of the spa running into the swimming pool with a stone finish to the front of the spa.

On or about May 22, 2020, Complainant and Respondent completed a change order providing for “65 sqft of stackstone flats installed, Customer provided all stackstone and grout.” Nothing in the change order indicated that stackstone could potentially cause issues with the water coming over the spillway or that Respondent would not warranty the work.

Upon completion of the swimming pool and spa, Ms. Guiney was not satisfied with the finished project. Instead of a waterfall effect, the spa had a spillover into the pool and the water coming off the ledge hit and splashed down the front stone finish.

Also, at some point after the project was completed, the pavers next to the spa started shifting, lifting, and sinking at different points.

On or about April 2, 2021, the Registrar received a Complaint against Respondent from Complainant alleging poor work with respect to the project.

The Registrar assigned the complaint to Investigator Steven Avila. After a jobsite inspection on April 21, 2021, Investigator Avila issued a written directive to Respondent that provided 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 May 31, 2021.

. . . .

REQUIREMENTS

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

Compliance Item: 1 - Spa leaks from walls

Investigator’s Observation: At the time of the inspection it appeared as though water from the spa waterfall runs down the face of the spa, into the cracks between the rock face, down and back towards the rear of the spa and resulting in water flowing behind pool coping (on the exterior of the pool) and into the affected area to the right of the spa when facing it, this results in flooding in an area of pavers pointed out and being repaired by the complainant. Water from the feature should remain in the pool area and not flow to the exterior areas of the pool. Allegation has been verified. Respondent shall correct by the 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.

Following the issuance of the written directive, Respondent failed to perform any corrective work. After the deadline in the directive expired, Investigator Avila was notified no corrective work had been performed.

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(A); and A.R.S. § 32-1154(A)(22).

Investigator Avila testified that during the jobsite inspection, he observed that the water from the waterfall just fell down the front of the waterfall and he could see the water flowing into the stacked stone. Investigator Avila noted that the overhang was actually angled back into the spa. Investigator Avila was uncertain if the angle of the overhang was the cause of the issue or if something else was at play.

Ms. Guiney testified that the spa at issue was the same size as the spa at her old home, but acknowledged that the pool was smaller. Ms. Guiney stated that Respondent never indicated there would be any issue with the overflow running back through the stone front, but warned her that there could be calcium build up or algae growth on the stone. Ms. Guiney indicated that she had cleaned the stone at her old home and had no issue doing that at the new home. Ms. Guiney stated that she had a stone front spa at her old house, so she did not understand why it would not be possible to do that with this project.

Daniel Yonker, Complainant’s Owner, testified that the photograph Ms. Guiney provided to Respondent prior to the pool and spa construction began included a serious angle toward the pool that enabled gravity to make the water shoot off the side of the overhang and into the pool without hitting the front of the spa. Mr. Yonker noted that the change order did not include any mention of warranty issues. Mr. Yonker admitted that Respondent had never completed a knife-edge spill way for Complainant on any of their prior projects together.

Bryan Busby, Complainant’s General Manager, testified that if Respondent had ever told him there would be an issue with the stacked stone front on the pool, he would have remembered that. Mr. Busby stated that Respondent gave Complainant “a couple different options” to address the issue—change the stone front back to tile or install a new, bigger pump. Mr. Busby suggested that Respondent change the angle of the spillover to ensure that the water did not land on the front of the spa.

Jared Strother, Project Manager, testified that he explained to Complainant and Ms. Guiney that the stacked stone would cause an issue with the spillover as the water could permeate the stone. Mr. Strother stated that Respondent had never built a knife-edge spillover for Complainant and was not contracted to do so in this instance through either the contract or the change order. Mr. Strother indicated that installing a knife-edge spillover at this point would require a redo of the rebar and shotcrete. Mr. Strother admitted that the parties met prior to the pool being dug to discuss Ms. Guiney’s vision of the pool and spa. Mr. Strother also acknowledged that the original contract did not have a spa included and it was only included at Ms. Guiney’s request. Mr. Strother stated that he did not believe a new pump would solve the issue and did not want to invest in that approach when he did not see it would change the outcome. Mr. Strother testified that the only viable solution was to put water line tile on the front of the spa.

Stacey Stewart, Respondent’s Officer, testified that Respondent never said it would not fix the issue, but Complainant was unwilling to accept the proposed fix, changing the stacked stone front of the spa to tile. Ms. Stewart questioned what would happen if Respondent bought and installed a new pump that did not resolve the issue.

Administrative notice is taken of Respondent’s prior License record on September 13, 2021. Such prior License record reflects that Respondent’s License No. 247546 was first issued on August 18, 2008, and was active. Such prior License record also reflects that there were no other open complaints and three prior resolved/settled complaints against Respondent’s 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 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 contract between the parties, including the change order, provided that Respondent would build a swimming pool and spa with a stacked stone front on the spa. There was no documented warning that such a finish would result in water running back through the stacked stone finish. Respondent’s proposed method to correct the issue was not in accordance with the contract and change order with Complainant, that is, the contract and change order did not call for a tile front to the pool. While it may be costly to now correct the issue to provide Ms. Guiney with the project she informed Respondent she wanted, Respondent was able to change the plans, and the resulting rebar and shotcrete to achieve that result prior to the swimming pool and spa being dug.

The evidence established that Respondent’s work was not in conformity with the Registrar’s standards. 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(A).

The evidence established that Respondent did not complete the corrective work following the Directive being issued. 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. 247546 for a period of three 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)(5), 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 40 days from the date of that certification.

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-137160-45720000Done this day, September 13, 2021.

/s/ Tammy L. Eigenheer

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors

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