ALJDEC - Licensing
2023A-06283-CHC-ROC · Registrar of Contractors · 2024-03-01
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
Steve Manos,
COMPLAINANT,
v.
Postorino Pool Service and Repair, Inc.
License No. ROC 143409,
RESPONDENT.
No. 2023A-06283-CHC-ROC
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: February 14, 2024
APPEARANCES: Complainant Steve Manos appeared on his own behalf. Doug Sydenham appeared on behalf of Respondent Postorino Pool Service and Repair, Inc. Matthew McNeil appeared as a witness for Respondent Postorino Pool Service and Repair, Inc.
ADMINISTRATIVE LAW JUDGE: Sondra J. Vanella
EXHIBITS ADMITTED INTO EVIDENCE: Complainant’s Exhibit 8; Administrative Notice of Agency Record
FINDINGS OF FACT
Postorino Pool Service and Repair, Inc. (“Respondent”) is the holder of License Number 143409 issued by the Arizona Registrar of Contractors (“Registrar”).
In or about January 2022, Steve Manos (“Complainant”) contracted with Respondent for the remodel of Complainant’s pool.
Toward the end of May or beginning of June, 2023, 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 Steve Klein. After a Jobsite Inspection, Investigator Klein 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 August 21, 2023.
You are directed to remedy the following violations by the appropriate means:
Complaint #1 Remedy for ruining pool light
Inspector’s Observation: Both parties agreed a working light was in the contract. Respondent states the existing wires to the light were possibly pinched and were cut.
• Respondent shall complete project per original contract agreement, plans, specifications and properly executed change orders.
Complaint #3 Correction of lower spa cleaning issues that he caused in changing pumps
Inspector’s Observation: It appears the lower spa cleaning system is not functioning as intended.
• Respondent shall correct by the appropriate means.
Complaint #4 Cutting out conduit pipes, and clogging spa main drain by failure to put sponge in drain prior to demolition of existing pool finish (The pop ups were working prior to his work).
Inspector’s Observation: It appears the lower spa cleaning system is not functioning as intended.
• Respondent shall correct by the appropriate means.
ITEMS NOT REQUIRING CORRECTION
The following complaint items require no action by the Respondent:
Complaint #2 Correction of Pebble Fema finish
Inspector’s Observation: It’s been to long since the pool was completed for me to determine if the pools finish is due to poor workmanship.
Complaint #5 Completion of conduit and wiring issues (includes lights- red brass and gfci circuits
Inspector’s Observation: Completed prior to the inspection and the pool light circuit was abandoned.
Complaint #6 Stop leaking around conduit stubs, and pool equipment wires and conduit
Inspector’s Observation: Completed prior to the jobsite inspection.
Complaint #7 Completion of aqua link connections and wiring and reassembled.
Inspector’s Observation: Completed prior to the jobsite inspection.
All errors in original.
At Investigator Klein’s suggestion, the deadline for compliance with the Written Directive was extended to October 1, 2023.
After the extension to the Written Directive expired, Investigator Klein ascertained that Respondent did not perform any corrective work.
Thereafter, Investigator Klein forwarded the Complaint 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).
Complainant testified that the only item of Complaint that remains is the non-functioning pool light. Complainant testified that the pool light was operational prior to Respondent commencing its work on the project and that Respondent cut the electrical source to the light. Complainant further testified that Respondent chose not to perform the corrective work. Complainant acknowledged that he received a credit for the cost of the pool light, however, Complainant contracted for a functional pool light and wants an operational one.
Respondent’s representative, Doug Sydenham, testified that during the original visit to the property, the electrical line was cut to both the pool and spa lights and he could not ascertain whether they were operational. Respondent cut the light from the electrical cord and attempted to pull the cord from both directions. Respondent hired an electrician to assist with the pool light and the electrician also could not find a solution to the issue. Respondent asserted that Complainant stated that he “could live without a pool light” and therefore, Respondent did not present any alternatives to Complainant. Respondent asserted that Complainant “wanted to keep the job moving so he did not pursue a remedy.” Respondent placed the old light fixture back in the pool wall in order to avoid a gap in the wall. Respondent credited Complainant for the pool light.
After the Complaint was filed and the Written Directive issued, Respondent delayed repairs while waiting for “the least impactful temperatures.” Respondent asserted that is the reason the work was not performed within the period of the Written Directive. Respondent further requested that Complainant sign a waiver prior to repair work due to having to drain the pool and possible resultant damage, and Complainant did not do so. Respondent also assumed that Complainant would be “uncooperative.”
Respondent acknowledged that it could have only partially drained the pool to perform the corrective work, however asserted that it would have been a difficult work environment and Respondent “preferred a comfortable work environment on steady ground.”
Administrative notice is taken of Respondent’s prior License record on February 29, 2024. Such prior License record reflects that Respondent’s License Number 143409 was first issued on March 11, 1999, and is active. Such prior License record also reflects that there is only the instant open complaint, no 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.”
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 Written Directive being issued. Notwithstanding the credit provided, Complainant contracted for a remodel of the pool with a functioning light fixture. The fixture does not function and Respondent acknowledged such. Respondent could have performed the repair by partially draining the pool, however, chose not to do so because of the belief that Complainant would be “uncooperative” and because Respondent wanted a “comfortable work environment.” Therefore, Complainant established that Respondent failed to take appropriate corrective action following a Written Directive from the Registrar and that valid justification for such failure did not exist. Consequently, Complainant established that Respondent violated 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 Number 143409 for a period of two (2) 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.
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, March 1, 2024.
/s/ Sondra J. Vanella
Administrative Law Judge
Transmitted by either mail, e-mail, or facsimile to:
Tom Cole, Director
Registrar of Contractors
Steve Manos
[email redacted]
Postorino Pool Service and Repair, Inc.
7360 E. Acoma Dr., Ste. 7
Scottsdale, AZ 85260
By: OAH Staff