ALJDEC - Licensing
2022A-05254-CHC-ROC · Registrar of Contractors · 2023-02-12
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
Kimberly Isaak,
COMPLAINANT
v.
Daniel Mark Henderson
DBA: Daniel M Henderson
License No. ROC 191093,
RESPONDENT
No. 2022A-05254-CHC-ROC
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: November 28, 2022 and January 31, 2023.
APPEARANCES: Complainant Kimberly Isaak appeared on her own behalf. Respondent Daniel Mark Henderson appeared on his own behalf. Registrar of Contractors Investigator Steven Avila appeared via Google Meet.
ADMINISTRATIVE LAW JUDGE: Adam D. Stone
_____________________________________________________________________
FINDINGS OF FACT
Daniel Mark Henderson (Respondent) is the holder of License No. 191093 issued by the Arizona Registrar of Contractors (Registrar).
On or about November 6, 2021 Kimberly Isaak (Complainant) agreed to have Respondent remodel her pool and surrounding deck area. The total cost was to be $39,000.00.
On or about June 27, 2022, the Registrar received a Complaint containing twelve items against Respondent from Complainant alleging poor work with respect to project.
The Registrar assigned the complaint to Investigator Christopher Fultz but was later reassigned to Investigator Steven Avila. Investigator Avila performed a jobsite inspection on August 15, 2022.
Investigator Avila then issued a written directive on or about August 19, 2022, 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 September 6, 2022.
. . .
DIRECTIVE REQUIREMENTS
You are directed to remedy the following violations by the appropriate means:
Compliance Item: 3 - No inspection Approval provided. No permits to date
have been provided.
Investigator’s Observation: At the time of the inspection both parties were in agreeance that no permits were taken out and no inspections performed. Allegation if verified. Respondent shall obtain all needed permits and pass all required inspections
Governing Rule: Departure from or disregard of: (b) A building code of this state or any political subdivision of this state in any material respect that is prejudicial to another.
Compliance Item: 5 - Pain in full - enclosure of freestanding spa not finished
Investigator’s Observation: At the time of the inspection, the project remained in an unfinished state. Pending permits and inspections the project should be completed as per the agreed upon scope of work. Respondent is licensed as CR-31 Masonry and CR-48 Ceramic, Plastic and Metal Tile. These licenses are not appropriate for the scope of work in question. The contracted scope of work requires a B-5 General Swimming pool license and should be completed by a properly licensed contractor. Allegation of freestanding spa is verified. Respondent shall attempt to resolve this matter appropriately.
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: 6 - Paid in full plumbing - pool system no in sight
Investigator’s Observation: At the time of the inspection, the project remained in an unfinished state. Pending permits and inspections the project should be completed as per the agreed upon scope of work. Respondent is licensed as CR-31 Masonry and CR-48 Ceramic, Plastic and Metal Tile. These licenses are not appropriate for the scope of work in question. The contracted scope of work requires a B-5 General Swimming pool license and should be completed by a properly licensed contractor. Allegation of no pool system installed is verified. Respondent shall attempt to resolve this matter appropriately.
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: 11 - List to be completed. 11 items listed.
Investigator’s Observation: At the time of the inspection, the pool remained in an unfinished state. No itemized list of items to be complete is to be issued with this directive. Per A.R.S. 32-1158(A) the respondent should have provided a written contract containing the minimum elements of contact as required by the registrar and met all of the agreed upon scope of work. Pending permits and inspections the project should be completed as per the agreed upon scope of work. Respondent is licensed as CR-31 Masonry and CR-48 Ceramic, Plastic and Metal Tile. These licenses are not appropriate for the contracted scope of work in question. The contracted scope of work requires a B-5 General Swimming pool license and should be completed by a properly licensed contractor. Allegation of an unfinished project is substantiated.
Respondent shall attempt to resolve this matter appropriately
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.
. . .
(All errors contained in the original)
On September 13, 2021, the Registrar issued a Citation against Respondent, charging possible violations of A.R.S. § 32-1154(A)(2)(b); A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108(a); A.R.S. § 32-1154(A)(16); and A.R.S. § 32-1154(A)(22).
On or about September 28, 2022, Respondent timely e-mailed an Answer to the Registrar.
On or about October 20, 2022, a Notice of Hearing was issued setting a hearing on November 28, 2022 at the Office of Administrative Hearings, an independent state agency.
At hearing, Investigator Avila testified as to the Registrar’s involvement and the above timeline.
Investigator Avila testified that Respondent because Respondent chose not to use his pool license, but rather his masonry license, he was cited for performing work outside of the scope of the license. Further, because of this he could not perform some of the corrective work and thus would need to come to a financial settlement with Complainant. Investigator Avila testified that this did not occur.
In addition, Investigator Avila testified that he believed there was enough time to comply with the Directive and because Respondent failed to do so, the (A)(22) violation was appropriate. Investigator Avila testified too that Respondent requested additional time to comply with the Directive, but that request came a day after the Directive expired.
As to the citation for workmanship, Investigator Avila stated that while it was too early in the project to determine actual workmanship of the work performed, the inability of Respondent to complete the project constituted a workmanship violation.
Further, as to the obtaining the permit, Investigator Avila testified that ultimately, the responsibility would fall on the contract to not perform work without obtaining a permit.
Complainant testified on her own behalf and offered the testimony of Lori Droeg, Dan Youngblood, and Kenneth Bielenberg.
Ms. Droeg testified that she was a licensed pool contractor. Ms. Droeg testified that when she visited the jobsite, she noticed a pile of backfill of rubble, and the plumbing was not up to standards. Further, she testified that the project was incomplete. Finally, she testified that she would obtain engineering to get the permit on her own.
Mr. Beilenberg performed a mediation between the parties, but was unable to obtain an agreement.
Mr. Youngblood testified that he was a contractors and testified that it was the contractor’s responsibility to obtain a permit.
Ms. Isaak testified that she wanted to have her pool remodeled for her daughter who suffered from a spinal injury.
Ms. Isaak testified that there was never an engineering plan nor was a permit obtained. She testified that she had anxiety that no permit was obtained due to potential future problems.
In addition, Ms. Isaak testified that Respondent failed to perform the job in a workmanlike manner, as the block wall was hollow, and three sides of the wall were bowing.
Further, Ms. Isaak testified that Respondent made it clear that he was not using his pool license for this project.
Ms. Isaak also testified that Respondent failed to take the corrective action, and never reached out to schedule the work and/or seek a resolution once the Directive was issued.
Finally, Ms. Isaak testified that did not want the same thing to happen to other consumers and was seeking revocation of Respondent’s license and wanted reimbursement.
Respondent testified on his own behalf and called Chad Blough as a witness.
Mr. Bough testified that he was a lead superintendent for CalPlaster. He testified that the use of masonry block in pools is acceptable if prepared properly. He testified that he had worked with Respondent many times and that Respondent’s work was always good.
Respondent testified that he chose to use his masonry license over his pool license because he has a partner on his company which holds the pool license, and he did not believe that his partner would not approve the project without a permit.
Respondent also testified that he had performed many pool remodels using the masonry block and all projects went off superbly, and did not believe that the use of masonry block was a workmanship issue.
Further, Respondent testified that chose to not obtain a permit on the project to same Complainant money. Also, he testified that in his opinion, it was the homeowner’s responsibility to obtain a permit.
As to contracting beyond the scope of his license, Respondent testified that he “blew it”. However, he testified that the whole pool did not need to be re-plumbed, only that the existing plumbing needed to be extended.
Also, Respondent testified that it was physically impossible for him to comply with Directive as he could not timely obtain the engineering drawings to submit for a permit. He testified however, that he reached out to obtain an engineer on August 19, 2022, but they were unable to prepare their drawings before the Directive expired. Also, he testified that he was only one day late in requesting an extension.
Finally, Respondent testified that he believed everything was going well on the project and it was about 80% completed until someone informed Complainant that masonry block was somehow inacceptable. Also, Respondent testified that now he remained ready, willing and able to fully complete the project. He testified that he did not believe that he did not deserve to have his license revoked as it is his livelihood and also needs to take care of his grandchildren.
Administrative notice was taken of Respondent’s prior License record on February 12, 2023. Such prior License record reflected that Respondent’s License No. 191093 was first issued on December 8, 2003, and reflected that there was one open complaint, namely the present complaint, and one resolved/settled case.
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 preponderance of the evidence established that by not obtaining a permit prior to commencement of the project, Respondent was in violation of A.R.S. § 32-1154(A)(2)(b).
In addition, because there was no permit obtained, this too would be a violation of A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108(A), as it was unprofessional to do the work without a permit.
The preponderance of the evidence demonstrated, and Respondent admitted, that he was contracting beyond the scope of his license as he was remodeling the swimming pool and the decking area which required plumbing work (existing or not) and that was not covered by his masonry license. Therefore, Respondent, was in violation of A.R.S. § 32-1154(A)(16).
Finally, the evidence established Respondent failed to complete the corrective work following the Directive being issued. It was unclear why Respondent waited until the day after the Directive expired to request an extension, but he did so, and for that 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. 191093 for a period of ten 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)(7), unless Respondent tenders payment of any outstanding prior civil penalty.
Pursuant to A.R.S. § 41-1092.08(I), the licensee may accept the Administrative Law Judge Decision by advising the Office of Administrative Hearings in writing not more than ten (10) days after receiving the decision. If the licensee accepts the Administrative Law Judge Decision, the decision shall be certified as the final decision by the Office of Administrative Hearings.
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.
Done this day, February 12, 2023.
/s/ Adam D. Stone
Administrative Law Judge
Transmitted electronically to:
Martín Quezada, Director
Registrar of Contractors
Kimberly Isaak
10714 E Autumn Sage Dr
Scottsdale, AZ 85255
[email redacted]
Daniel Mark Henderson
DBA: Daniel M Henderson
26618 N 59th Dr
Phoenix AZ 85083-6578
[email redacted]
By: OAH Staff