ALJDEC decisions subject to certification as final

2022A-00298-CHC-ROC · Registrar of Contractors · 2022-07-25

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Dan Jonaitis,

COMPLAINANT

Simple Elegance of Arizona, Inc.

DBA: Perfect Pool Guys

License No. ROC 278306,

RESPONDENT

No. 2022A-00298-CHC-ROC

ADMINISTRATIVE LAW JUDGE

DECISION

HEARING: July 15, 2022

APPEARANCES: Angela Cooner, Esq. represented Complainant Dan Jonaitis, who was present. Dave Keimach appeared on behalf of Respondent Simple Elegance of Arizona, Inc., doing business as Perfect Pool Guys. Arizona Registrar of Contractors Investigator David Fagerburg appeared as a witness.

ADMINISTRATIVE LAW JUDGE: Sondra J. Vanella

FINDINGS OF FACT

Simple Elegance of Arizona, Inc., doing business as Perfect Pool Guys (“Respondent”), is the holder of License No. 278306 issued by the Arizona Registrar of Contractors (“Registrar”). David Lee Keimach is Respondent’s Qualifying Party and an officer.

On or about January 4, 2021, Dan Jonaitis (“Complainant”) contracted with Respondent for the construction of a pool at Complainant’s property. The contract price was $44,526.00.

On or about January 11, 2022, the Registrar received a Complaint against Respondent from Complainant alleging abandonment and poor work with respect to the project.

The Registrar assigned the Complaint to Investigator David Fagerburg. Investigator Fagerburg conducted a jobsite inspection on February 9, 2022. At that inspection, Complainant added items to the Complaint. Consequently, Investigator Fagerburg conducted a second jobsite inspection on March 15, 2022, to address the addendum items. After the March 15, 2022 jobsite inspection, Investigator Fagerburg issued a March 17, 2022 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 Wednesday April 6, 2022.

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

Compliant Item 2: Plumbing is still not finished. The aerator at the coping line is not installed. The drain line for the motorized cover basin is not terminating into the area we discussed. It was left abandoned 20 feet from the pool by equipment pad. There is another 40ft.+ to go. Multiple requests for Mr. Keimach to address has not happened. This discussion was also done via text on - 11/11/21 - to which Mr. Keimach stated that it needs to be run into the front yard/wash area. The plumbing line for the "bubblers" is

run too far over on the discharge side. We are putting a wall up to hide the equipment area & this cannot be done with this exceedingly large plumbing loop.;

Investigator’s Observation: The respondent is to complete the plumbing for the pool aerator and the drain line for the motorized cover.

Addendum Compliant Item 1: I would like to request another onsite meeting regarding the heated & bent pool plumbing. Per the manufacturer, this type of install is not an approved method. Therefore, all of the plumbing that has been heat treated would need to be removed and replaced.

Investigator’s Observation: The respondent is to identify all PVC pool plumbing piping that has been bent and correct by appropriate means.

ITEMS NOT REQUIRING CORRECTION

The following complaint items require no action by the Respondent:

Compliant Item 1: Plumbing was done by an unlicensed plumber. Payment/check was made to an individual -Henry Perez (or Henry Sperez) and was cashed by the individual same day check was made. This is what Mr. Keimach told us to do via text message on 11/11/21. We received an invoice from PoolScape Az Inc. from which Mr Perez is not associated with that license. I have asked Mr. Keimach repeatedly (text & emails) for Mr. Perez's Contractor#, Insurance & Bond information - none of this could be supplied. Mr Keimach has stated that PoolScapeAZ wanted it done that way & who is he to question how they want to run their business. This was in an email dated - 12/28/21

Investigator’s Observation: I am able to verify that the respondent’s subcontractor hired an unlicensed person that is not an employee to install the plumbing for the pool.

Compliant Item 3: I was informed that the original contract was to be rewritten so that it could include a - Price Escalation Clause. Apparently, this was not in the first contract that Mr. Keimach supplied because he hadn't "worked out the correct wording for it yet" and "needed to figure out how to add it into the program' This was brought to our attention as pricing adjustments on supplies and labor could affect the pricing on items such as shotcrete, rebar & plumbing. While these items were discussed, Mr. Keimach decided that we would do a "pay-as-you-go" so that he would not be financially strained if something should arise and payments needed to be made expeditiously to his subcontractors. I agreed that was ok since we live onsite and payments could be made same day, if needed.

Investigator’s Observation: I am able to verify that the contract submitted is not signed, does not have any costs related to the scope of work listed, there have been no invoices submitted to the complainant by the respondent, the agreement is to pay as you go, the complainant is to provide all the materials and pay the labor costs when invoices are submitted directly to the respondent’s subcontractors.

Compliant Item 4: We did not receive our copy of the newly worded contract nor did we receive a copy of the original with notes we gave back to him.;

Investigator’s Observation: At this jobsite investigation I informed both parties that the ROC cannot direct a contractor to provide project documents.

Compliant Item 5: I have asked for an invoice for the charges for the initial permit. The check was written for $2366 on 4/30/21. I have requested an itemized paid invoice for what those specific charges were applied to.

Investigator’s Observation: At this jobsite investigation I informed both parties that the ROC cannot direct a contractor to provide project documents.

Addendum Compliant Item 2: I am also requesting that Henry Perez be present to discuss installation and proper procedures since he is the one that was directly paid for this work. I find it impossible to believe that Mr Keimach has no contact information for the person who he hired & sent property information over to for this work. Please see the previously supplied text thread.

Investigator’s Observation: The ROC cannot direct the respondent or the

respondent’s subcontractor to provide the contact information required to identify who Henry Perez is.

Addendum Compliant Item 3: I am also requesting a phone call from a manager or supervisor to discuss options with this open case.

Investigator’s Observation: This is a statement made by the complainant that does not imply poor workmanship.

All errors in original.

Investigator Fagerburg extended the time for compliance with the Written Directive and issued an Addendum Written Directive dated April 12, 2022, extending the compliance deadline to April 29, 2022.

After the expiration of the time period in which to perform corrective work, Investigator Fagerburg contacted Complainant and was informed that Respondent had not performed any further work on the project. Thereafter, Investigator Fagerburg forwarded the matter to the Registrar’s Legal Department. 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 Fagerburg conducted a prehearing inspection on July 14, 2022, and found that the condition and the status of the project had not changed since the jobsite inspections.

Investigator David Fagerburg’s Testimony

Investigator Fagerburg testified consistently with his findings contained in his jobsite inspection notes and the Written Directive. Investigator Fagerburg testified that he extended the time for compliance with the Written Directive after speaking with both parties. The parties mutually agreed to extend the time for the Written Directive because it appeared there had been a miscommunication regarding the scheduling of the work. Investigator Fagerburg explained that Respondent produced an email dated March 18, 2022, requesting access to the property, and was told by Mr. Keimach that Complainant had not responded to the email, and therefore, Respondent had not been granted access to perform the work. Investigator Fagerburg also testified that on April 13, 2022, Respondent set an email to Complainant requesting access to the property. On April 20, 2022, Complainant sent an email to Respondent stating that he had not received a follow up to Respondent’s April 13, 2022 email, and requested a response. On or about April 28, 2022, Complainant sent an email to Respondent inquiring when Respondent was planning to perform the work. Investigator Fagerburg opined that once again, there was a miscommunication between the parties because Respondent was waiting on authorization from Complainant to be on the property and Complainant was expecting Respondent to provide notice as to when the work would be performed. Consequently, no work was performed and a compliance inspection was not conducted. Investigator Fagerburg could not determine which party was the cause of the work not being performed. Therefore, he forwarded the matter to the Registrar’s Legal Department.

On May 12, 2022, Investigator Fagerburg responded via email to questions posed by Complainant’s then attorney of record. In his answers to the questions, Investigator Fagerburg stated that “per the manufacturer specifications PVC pipe should not be heated to bend.”

Dan Jonaitis’ Testimony

Complainant testified regarding the contract history, explaining that the original contract was modified because Respondent wanted to add a price escalation clause. Complainant testified that Respondent obtained the permit and Respondent’s name appears on the permit as the contractor. Complainant testified that excavation of the pool began in September 2021, and that plumbing was the next phase which began on or around October 18, 2021.

Complainant testified that he did not receive Respondent’s letter/email dated March 18, 2022, and as to the April 20, 2022 email that he sent Respondent, he was waiting on Respondent to provide him 24 to 48 hours’ notice as to when Respondent would be performing the required corrective work. Because Complainant did not receive a response from Respondent to the email of April 20, 2022, Complainant contacted Investigator Fagerburg on or about April 28, 2022, to advise that no work had been performed.

Complainant submitted into evidence “General Information on All Cresline Pipes,” dated September 2020, as Cresline-West, Inc. is the manufacturer of the PVC piping used on Complainant’s project. The document specifies the following in regard to “Bending:”

BENDING: In bending Cresline PVC, excellent results can be obtained by heating the pipe in a fluid bath or hot air oven at 225o F. for five minutes and bending it around a form of corresponding radius. To prevent flattening, the pipe can be filled with sand or bent around a pipe bending form grooved to the depth and the same radius as the outside diameter of the pipe. Due to a certain amount of recovery, the pipe should be bent beyond design to allow for this spring-back. After bending, the pipe should be cooled with water while still on the form. Do not use PVC pipe that has been bent in a pressure system.

Complainant testified that Respondent’s plumber “used a torch and barbeque grill tank, laid pipe on the ground, and walked along the pipe to heat it up and stepped on it to see how it was heated . . . and formed it.” Complainant testified that the pipe looked like “wet spaghetti.”

Dave Keimach’s Testimony

Mr. Keimach testified that there was no indication that the PVC pipe could not be heated because the pool “is not a pressure system.” Mr. Keimach submitted into evidence a letter dated June 28, 2022 on Cresline-West, Inc. letterhead, signed by Rick Sheppler, a Sales Manager for Cresline-West, Inc. The letter states the following:

Re: Bending of PVC pipe

Sch 40 pressure pipe is manufactured to ASTM D1785, Standard Specification for Poly (Vinyl Chloride) (PVC) Plastic Pipe. Part of the manufacturing process includes reheating one end of the pipe in a heating chamber and forcing the heated end over a belling mandrel. The pipe is then cooled, forming a bell end for solvent welding. Thermo plastic properties of PVC allow for this process.

In the field, we are aware that PVC pipe is frequently reheated and bent for swimming pool applications. While this is beyond the scope of our testing standards, we are unaware of any problems associated with the practice.

Mr. Keimach also submitted into evidence an informational printout from Lincoln Plastics’ website, a different manufacturer, regarding thermoplastics. Mr. Keimach showed a YouTube video depicting the heating of PVC pipe.

Mr. Keimach submitted into evidence photographs of the pool’s pressure gauge taken in June 2022, seven months after the plumbing was completed in November 2021. Mr. Keimach asserted that the photographs establish that the pool is still holding pressure after seven months and would have passed inspection.

Mr. Keimach also submitted into evidence a letter dated April 14, 2022, from Complainant’s then attorney of record which stated in pertinent part:

[Complainant] advises me that you represented to the [Registrar] that [Complainant] prevented you from undertaking the repairs that you believe the [Registrar] mandated . . . [Complainant] disputes this contention and has expressly advised me that he simply required that you identify the individuals that you were sending to his property to perform the work, which is certainly not an unreasonable request. You apparently refused to do so and as such [Complainant] had no choice but to prevent access until such time as those individuals were properly identified.

Mr. Keimach asserted as a defense that the parties’ contract was not valid because it was not signed. However, Mr. Keimach did not dispute that Respondent obtained the permit for the project, and that Respondent “through subcontractors” performed the excavation and the plumbing on the project.

Administrative notice is taken of Respondent’s prior License record on July 18, 2022. Such prior License record reflects that Respondent’s License No. 278306 was first issued on June 18, 2012, and is active. Such prior License record also reflects that there is only the instant open complaint, zero resolved/settled complaints, and no discipline against Respondent’s license.

CONCLUSIONS OF LAW

This matter lies within the Registrar’s jurisdiction.

Complainant bears the burden of proof to establish Respondent’s statutory violations by a preponderance of the evidence. “A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.”

In this case, Investigator Fagerburg found that Respondent’s work was not in conformity with the Registrar’s standards. Investigator Fagerburg determined the existence of workmanship issues concerning the work that was performed by Respondent. Although Respondent asserted that it properly bent the PVC pipe, Respondent failed to establish its affirmative defense, as Respondent did not establish that the pool is not a pressure system, and Respondent failed to establish that it utilized proper protocol while bending the PVC pipe. Further, Respondent failed to address at hearing the plumbing for the pool aerator and the drain line for the motorized cover. Therefore, Complainant established that Respondent did not complete all work in a professional and 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 required corrective work following the Written Directive being issued notwithstanding the extension of time within which to complete the required work. Although Respondent emailed Complainant the day after the Written Directive was issued on March 18, 2022, there was no evidence that Respondent followed up on that email or made any other reasonable attempts at contacting Complainant to advise when the work would be performed. After the Amended Written Directive was issued, again Respondent made one attempt the day after its issuance, on April 13, 2022, to contact Complainant. Complainant responded on April 20, 2022, and Respondent failed to respond to that communication. The Administrative Law Judge concludes that Respondent was not diligent in its efforts to complete the required corrective work, as Respondent only made two attempts (once during the initial Directive period, and once during the Amended Directive period) to contact Complainant to schedule the corrective work, despite having from March 17, 2022 to April 29, 2022, to complete the required work. The Administrative Law Judge concludes based on the credible and probative evidence of record that valid justification did not exist for Respondent’s failure to comply with the Written Directive. 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. 278306 for a period of four (4) 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 (30) 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 forty (40) days from the date of that certification.

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-137160-45720000Done this day, July 25, 2022.

/s/ Sondra J. Vanella

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors

By Miranda R. Alvarez

Legal Secretary -54864001

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-137160-45720000