ALJDEC decisions subject to certification as final

2021A-05196-CHC-ROC · Registrar of Contractors · 2022-03-03

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Linda Digiovanni ,

COMPLAINANT

Mercury Pool Plastering Inc,

License No. ROC 141709,

RESPONDENT

No. 2021A-05196-CHC-ROC

ADMINISTRATIVE LAW JUDGE

DECISION

HEARING: February 16, 2022

APPEARANCES: Linda Digiovanni on her own behalf; Grace Murillo for Respondent

ADMINISTRATIVE LAW JUDGE: Thomas Shedden

FINDINGS OF FACT

On January 12, 2022, the Registrar of Contractors (“ROC”) issued a Notice of Hearing on Contested Case setting the above captioned matter for hearing on February 16, 2022 at the Office of Administrative Hearings.

Through its Notice of Hearing, ROC alleges that Respondent Mercury Pool Plastering Inc. may have violated Ariz. Rev. Stat. sections 32-1154(A)(3) and (A)(22).

Respondent holds license No. 141709 issued by ROC. Grace Murillo appeared and testified for Respondent, which also presented the testimony of Andrea Murillo.

Complainant is Linda Digiovanni.

ROC investigator Christopher Fultz also testified.

Complainant hired Respondent to perform work on a pool and deck at her house.

On or about October 14, 2021 Complainant filed with ROC a complaint against Respondent alleging abandonment and poor work on Respondent’s part.

Complainant’s complaint shows that the contract price was $17,200 and that she had paid Respondent $8600.

ROC investigator Mr. Fultz conducted a jobsite inspection on November 15, 2021. Mr. Fultz found that some aspects of the project were ongoing and his jobsite investigation notes show that ROC will not make rulings on such projects.

On November 30, 2021, ROC issued to Respondent a Directive that provided in part:

*** You must notify the Registrar’s assigned Investigator of your compliance with this Directive prior to 5:00 p.m. on 12/20/2021 .

***

DIRECTIVE REQUIREMENTS

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

Compliance Item: 1 - In order to continue further work or any cleanup, Mercury Pools demanded an advance of 50% of the balance due upon completion. Not part of contract which states 50% deposit balance due upon

completion. I refused to change contract terms so they stopped working on project.

Investigator’s Observation: The pay schedule needs to follow what is in the contract.

Compliance Item: 3 - Tile work suspect. Hollow sound behind several tiles.

I requested a epoxy or silicon grout and Mercury used AR C-Cure Sanded 922. Grace told me it was not cement on 2-3-21.

Investigator’s Observation: There were several hollow sounding tiles that should be addressed. The product used, meets minimum standards. The tiles need to be fixed by 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.

Compliance Item: 4 - Decking material was not heat reflective paint as per contract. Color was wrong. I choose Desert Sand and color applied is too light. Products not applied as per manufacturer instructions including unwillingness to apply 2 coats or follow repaint instructions. Decking products were Xcel Surface. Mercury used regular top coat instead of Heat Reflective top coat.

Investigator’s Observation: The cool deck appears to be properly installed. However, there is an issue with color. The painted color should match what is in the contract. This needs to be fixed by 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.

Compliance Item: 5 - Grading of deck surface and removal of old drains replaced by scoring on desk surface as recommended by Mercury, found to be an inadequate solution for managing standing water.

Investigator’s Observation: Ponding does look to be an issue in this area. Removing the drains and not addressing the grading will result in flooding and damage to the home. This needs to be fixed by 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.

Compliance Item: 10 - Overspray of decking materials on walls, doors, windows, ceiling of patio, Brass bell, landscape rocks, pavers, wood beams( also with gouges taken out), shed, decorative mirror and metal awnings. Appears attempt to clean some area with harsh solvents or too much pressure washing and even covering with paint different from finish and color of original house paint. House painted 4 years ago, 9-2017. Resulting in extreme fading of lower half of house walls, garage door and pool pump wall.

Investigator’s Observation: I did note some minor overspray on the wall and ceiling in the patio. These areas will need to be corrected. As for the fading of the patio and the wood beam issues. The fading is consistent with the house being exposed to south. Pictures provided by the contractor showed the gouges were already present prior to the work. The house fading is also consistent with having a south and west exposure.

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.

ITEMS NOT REQUIRING CORRECTION

The following complaint items require no action by the Respondent:

Compliance Item: 2 - Mercury insisted on draining pool and demolishing it before securing Cap tile. Cap tile was back orderer and became available 6-17-21. Pool rendered useless. Mercury advised nothing else can be started on project until tile in done first. I spoke with Grace on the phone and questioned if we should wait before draining pool without tile in hand and she said no we should move forward.

Investigator’s Observation: The Pool is still under construction, the ROC will not make rulings on projects that are still underway.

Compliance Item: 6 - Mercury did not install the new mini pebble interior, aerator, drain, pool light or provide neopreen sleeve for hand rail.

Investigator’s Observation: This part of the project is still ongoing. Therefore, the ROC cannot make a determination at this time.

Compliance Item: 7 - Mercury used empty pool as a waste can dumping garbage, solvents, washings tool out in standing water accumulated inside pool and other contractor materials. Nothing was done to protect the in floor cleaning system with 13 pop-up heads which appear to be compromised or ruined.

Investigator’s Observation: This part of the project is still ongoing. Therefore, the ROC cannot make a determination at this time.

Compliance Item: 8 - Damaged iron gate by altering hinges changing the way it was hung. Difficult to open now. Overspray of decking materials on gate and wood slats. Attemped cleaning caused damage to wood.

Investigator’s Observation: The gate is old and is west facing on the Southside of the home. There is no evidence the pool builder did any damage to the gate.

Compliance Item: 9 - Broke hose reel handle after I had requested crews to not use my hoses. Hose was wound up improperly and they tried to force it causing handle to break. Gave them replacement info and have yet to receive item.

Investigator’s Observation: There is an agreement between the parties for the Contractor to replace the hose reel.

Compliance Item: 11 - Illegal dumping of waster water and materials surrounding my entire house. Specifically did not give permission at time of signing contract! After demolishing pool, found dumping on side yard with attempted coverup. Spoke with Grace and Mike and they said they told there crew to not do that and agreed to clean it up at the end . Then again deck crew caught digging holes in front yard doing the same. Crew continued deliberately and repeatly making numerous deposits in my landscape rocks, flower beds, trees, shed, remaining grass beds, under brick borders and pavers and all around pool equipment. Additionally dumped so much in the area my tortoise resides, he was moved off property for safety. All my amended soils for gardening have been destroyed affecting trees and plants. Multiple areas of rock landscape disturbed and visible damaged by erosion and discolaration of rocks.

Investigator’s Observation: There is no evidence of this allegation.

Compliance Item: 12 - Operation of diasppearing screen door and screen itself damaged

Investigator’s Observation: There is no evidence the contractor damaged the screen door.

Compliance Item: 13 - Finish of ceiling fans have been altered from overspray and cleaning.

Investigator’s Observation: The ceiling fans are old and have not been up kept. There is no evidence the contractor did anything to the fans.

Compliance Item: 14 - Finish on new patio sliding door installed 1-19-21 damaged

Investigator’s Observation: There is no evidence of the contractor damaging the finish of the door.

Respondent did not complete those corrections in the time ROC allowed.

Respondent’s Answer shows that Respondent did not understand that the deadline set out in the Directive was the deadline by which the work had to be completed, but rather, Respondent was under the impression that it was required to respond to the Directive by that date, provided that it was continuing to work with Complainant.

Grace Murillo provided credible testimony that ROC’s Directive did not provide Respondent with a reasonable amount of time to make the corrections because Respondent had to obtain tile to perform the work, and to the effect that the tile work had to be completed before the other items.

After the Directive expired, Respondent requested access to complete the project, but Complainant was unwilling to allow access. Ms. Digiovanni testified that she denied access because ROC had informed her that Respondent was not properly licensed to complete the tile repairs.

ROC did not allege that Respondent had contracted beyond the scope of its license and ROC also did not issue to Respondent a warning letter to that effect.

Ms. Digiovanni had entered into evidence however notes from ROC’s file showing that Mr. Fultz had been directed to issue a warning letter. The record does not show why no warning letter was issued (i.e., whether it was an oversight or whether ROC determined that Respondent was not acting outside the scope of its license).

Respondent has stood ready, willing and able to complete the project at all times since Complainant filed her complaint.

ROC issued to Respondent a Citation dated September 20, 2021, through which ROC alleges that Respondent may have violated Ariz. Rev. Stat. sections 32-1154(A)(3) and (A)(22).

Respondent did not dispute that there may be some “hollow” tiles; but there is no evidence to show how many are hollow or where these are located.

The record shows that the parties agreed to at least three different colors for the deck. Ms. Digiovanni had entered into evidence a photograph of a small sample of the deck that she opined shows that the color is not correct. The evidence of record does not show that the existing deck color was not that which the parties agreed to.

In the contract Complainant agreed to have an existing drain on the deck removed and replaced with decking material. The contract also shows that Respondent would “build up areas of the deck to even out slope, try to add slope downward away from house (no guarantee will be better slope)”. Ms. Digiovanni testified to the effect that Respondent did not build up the deck, but rather only did grinding.

Respondent does not dispute that there may be some minor overspray, which is typical in a project like this one, but any such overspray is cleaned up at the end of the project.

The contract called for Complainant to pay the balance due of $8600 on completion of the project.

ROC’s administrative record includes undated correspondence from Respondent to Complainant in which Respondent details the work necessary to complete the project and through which correspondence Respondent informed Complainant that it would not continue work unless Complainant paid half of the outstanding balance. The record also includes a letter dated August 1, 2021 from Complainant to Respondent setting out a list of concerns and requirements to be completed before any additional work was undertaken. The record does not show whether Complainant was responding to Respondent or Respondent was responding to Complainant (or neither).

ROC’s record also has correspondence from Complainant dated September 19, 2021 in which she informs Respondent that she is unwilling to deviate from the contract’s payment terms, and a response dated September 22, 2021 in which Respondent informs her that it is therefore canceling the contract.

ROC’s record includes a request from Complainant to have ROC amend its citation to include issues that ROC had not found to be deficiencies on Respondent’s part. Through an email dated January 28, 2022, ROC responded to that request, showing that those items were not found to violations or should be addressed in the appropriate civil venue.

ROC’s substantive policy statement 2017.01 sets out the following pertinent information:

***

Professionalism

***

Licensed contractors are expected to have sufficient professionalism to deal with difficult clients and situations.

CONCLUSIONS OF LAW

Unless otherwise provided by law, a party asserting a claim, right, or entitlement bears the burden of proof; a party asserting an affirmative defense has the burden of establishing the affirmative defense. The standard of proof on all issues in this matter is that of a preponderance of the evidence. Ariz. Admin. Code § R2-19-119.

“At a hearing on an agency action to suspend, revoke, terminate or modify on its own initiative material conditions of a license or permit, the agency has the burden of persuasion.” Ariz. Rev. Stat. § 41-1092.07(G)(2).

“At a hearing on an agency's imposition of fees or penalties or any agency compliance order, the agency has the burden of persuasion.” Ariz. Rev. Stat. § 41-1092.07(G)(3).

A preponderance of the evidence is:

The greater weight of the evidence, not necessarily established by the greater number of witnesses testifying to a fact but by evidence that has the most convincing force; superior evidentiary weight that, though not sufficient to free the mind wholly from all reasonable doubt, is still sufficient to incline a fair and impartial mind to one side of the issue rather than the other.

Black’s Law Dictionary 1373 (10th ed. 2014).

Statutes should be interpreted to provide a fair and sensible result. Gutierrez v. Industrial Commission of Arizona, 226 Ariz. 395, 249 P.3d 1095 (2011)(citation omitted); State v. McFall, 103 Ariz. 234, 238, 439 P.2d 805, 809 (1968) ("Courts will not place an absurd and unreasonable construction on statutes.").

“Statutes shall be liberally construed to effect their objects and to promote justice.” Ariz. Rev. Stat. § 1-211(B).

The purpose of the Registrar’s licensing statutes is to protect the public from unscrupulous, unqualified, and financially irresponsible contractors. See Aesthetic Property Maintenance v. Capital Indem. Corp., 183 Ariz. 74, 900 P. 2d 1210 (1995).

The Administrative Law Judge may consider ROC’s administrative record. See Ariz. Admin. Code § R4-9-118.

Ariz. Rev. Stat. section 32-1154(A) provides that:

The holder of a license or any person listed on a license pursuant to this chapter shall not commit any of the following acts or omissions:

*****

3. Violation of any rule adopted by the registrar.

*****

22. Failure to take appropriate corrective action to comply with this chapter or with rules adopted pursuant to this chapter without valid justification within a reasonable period of time after receiving a written directive from the registrar. The written directive shall set forth the time within which the contractor is to complete the remedial action. The time permitted for compliance shall not be less than fifteen days from the date of issuance of the directive. A license shall not be revoked or suspended nor shall any other penalty be imposed for a violation of this paragraph until after a hearing has been held.

Ariz. Admin. Code section R49108(A) provides that “A contractor shall perform all work in a professional and workmanlike manner.”

The preponderance of the evidence shows that there were an unknown number of hollow tiles and some minor overspray on the walls and ceiling of the patio that required correction. The hollow tiles are in violation of Ariz. Admin. Code section R4-9-108(A), which is also a violation of Ariz. Rev. Stat. section 32-1154(A)(3).

The preponderance of the evidence shows that minor overspray is typical in a project such as this one and that Respondent would have taken care of the overspray when its other work was completed. Consequently, it has not been shown that the minor overspray was a workmanship violation.

It was not shown by a preponderance of the evidence that the decking was the wrong color.

It was not shown by a preponderance of the evidence that Respondent’s work removing the drain and trying to change the slope of the deck was a workmanship violation because the contract is vague as to what Respondent agreed to do, but the contract clearly notes that the work might not be sufficient to fix the existing problem.

Respondent did not comply with ROC’s Directive in the time allowed, but the preponderance of the evidence shows that Respondent was not provided a reasonable time in which to comply because it had to obtain tile to comply with that Directive. It has not been shown that Respondent violated Ariz. Rev. Stat. section 32-1154(A)(22).

Ariz. Rev. Stat. subsection 32-1154(B)(3) provides that ROC “May temporarily suspend ... or permanently revoke any or all licenses issued under this chapter if the holder of the license ... commits any of the acts or omissions set forth in” subsection 32-1154(A).

In this case, the only proven violation is the hollow tile, the scope of which is not in the record. The parties do however appear to have a good faith dispute as to the terms of the contract with respect to the drainage issue, the color of the deck, and issues for which ROC did not substantiate a violation.

In mitigation is Respondent’s willingness to complete the project and that ROC’s website shows no prior discipline in the more than 20 years Respondent has been licensed. It also appears however that the hearing in this matter was precipitated by Respondent’s decision to cancel the contract after Complainant would not agree to change the payment schedule. Consequently, a one day suspension is appropriate.

RECOMMENDED ORDER

IT IS RECOMMENDED that the Registrar of Contractors suspend Respondent Mercury Pool Plastering Inc.’s license No. 141709 for one day.

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 is forty days after the date of that certification.

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-137160-45720000Done this day, March 3, 2022.

/s/ Thomas Shedden

Thomas Shedden

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors

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