ALJDEC decisions subject to certification as final

2019A-02639-CHC-ROC · Registrar of Contractors · 2021-01-28

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Andrew Jay Ramirez,

COMPLAINANT,

Blue Desert Pools and Spas Inc.,

License No. ROC 107426, 107443,

RESPONDENT.

No. 2019A-02639-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: January 13, 2021

APPEARANCES: Complainant Andrew Jay Ramirez appeared on behalf of himself. Martin Herrera appeared on behalf of Respondent Blue Desert Pools and Spas, Inc. (Blue Desert).

ADMINISTRATIVE LAW JUDGE: Velva Moses-Thompson

_____________________________________________________________________

FINDINGS OF FACT

On July 10, 2020, the Registrar of Contractors, (Registrar), issued

a Notice of Hearing setting the above-captioned matter for hearing on August 11, 2020, by the Office of Administrative Hearings in Phoenix, Arizona.

Respondent Blue Desert holds license numbers 107426 and 107443

issued by the Registrar.

Martin Herrera is the qualifying party for Blue Desert.

On or about June 15, 2018, Complainant Andrew Jay Ramirez and Blue

Desert entered into contract wherein Blue Desert would install a pool at Mr. Ramirez’s residence.

On or about August 13, 2018, Blue Desert began installing the pool.

On or about May 21, 2019, Mr. Ramirez filed a complaint with the

Registrar alleging abandonment and poor workmanship on the part of Blue Desert.

On or about June 20, 2019, Registrar Investigator Reuben Perez

conducted a jobsite inspection.

8. On or about July 5, 2019, Investigator Perez issued a Directive to Blue Desert. The due date for compliance was July 22, 2019. Though the Directive, Blue Desert was directed to correct complaint items 5A, 7, and 10. Investigator Perez did not substantiate the remaining complaint items. Investigator Perez scheduled a compliance inspection, but Mr. Ramirez requested that the complaint be closed. The complaint was closed on July 30, 2019.

9. On or about November 8, 2019, Mr. Ramirez requested that the complaint be reopened. Mr. Ramirez added 20 items to the complaint.

10. On or about December 11, 2019, Investigator Perez conducted a second job site inspection.

11. On or about December 24, 2019, Investigator Perez issued a Directive to Blue Desert. Through the Directive, the Registrar directed Blue Desert to correct eight of the items listed in the complaint by appropriate means, no later than January 14, 2020. The December 24, 2019 Directive provided, in relevant part, as follows:

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

Complaint Item 1B: All breakers in load center should be properly labeled.

Investigator’s Observation: The breakers in the pool panel were observed without labels.

Governing Rule: Workmanship Rule: ARS 32-1154(A)(3) specifically to Rule 4-9-108

Complaint Item 5: On the horizontal 2” x 4” J-box the locking nuts are present and will need to be removed to form a water tight seal.

Investigator’s Observation: The junction box was observed to not have a water tight seal on the right side connector. Box should be sealed from possible water penetration.

Governing Rule: Workmanship Rule: ARS 32-1154(A)(3) specifically to Rule 4-9-108

Complaint Item 6: It will be necessary to install appropriate sized common and ground wires per 2014

NEC250.122 from the sub panel to the pool control load center.

Investigator’s Observation: No #8 bare copper grounding wire was observed. Contract addendum dated 06/16/2018 calls for its installation.

Governing Rule: Workmanship Rule: ARS 32-1154(A) (3) specifically to Rule 4-9-108

Complaint Item 7: The concrete pilaster the Acid injection tank sits on should be removed. In its current state it poses a serious hazard to spill and to potentially harm someone. The acid container needs to sit on the ground.

Investigator’s Observation: Container was observed on a pilaster without being secured to base.

Respondent offered to secure it at JSI.

Governing Rule: Workmanship Rule: ARS 32-1154(A) (3) specifically to Rule 4-9-108

Complaint Item 8: Per haywards installation manual a chemical resistant check valve is required to be installed before the point of where acid is injected. A chemical resistant check valve will need to be installed.

Investigator’s Observation: No check valve was observed before location of acid being injected as

required by manufacturer.

Governing Rule: Workmanship Rule: ARS 32-1154(A) (3) specifically to Rule 4-9-108

Complaint Item 11: The skimmers were not properly installed. After speaking with the pool manufacturer they are approximately 2” to low, this is evident in the photos as well, also noted in a recent leak detection the skimmers leak out over the top of the skimmers due to absence of skimmer extension, and mall drain was not properly plumbed through the main skimmer. See report.

Investigator’s Observation: Industry standards pool waterline is the center of 6” tile. Pool water was lower than the centerline and skimmers were flooded. Respondent should correct pool skimmers to be at appropriate height, straight and plumbed and functioning properly. Skimmers and main drains should be properly plumbed to meet industry standards, comply with entrapment requirements and be able to be

controlled/balanced as necessary for system to operate properly.

Governing Rule: Workmanship Rule: ARS 32-1154(A) (3) specifically to Rule 4-9-108

Complaint Item 15: The pool Vacuum line is not properly plumbed to allow for automatic cleaner function. The vacuum line needs to be plumbed through the main pool suction line before the pool/spa three port valve. As it is now if the cleaner line was open and the spa function selected the spa would cycle through the pool in spa mode.

Investigator’s Observation: Respondent should provide evidence to support system was connected as per

manufacturer’s recommendations and make corrections as needed.

Governing Rule: Workmanship Rule: ARS 32-1154(A) (3) specifically to Rule 4-9-108

Complaint Item 19: Pool ladder rusted.

Investigator’s Observation: Pool ladder was observed rusted at jobsite inspection. Respondent should determine cause and correct by appropriate methods.

Governing Rule: Workmanship Rule: ARS 32-1154(A) (3) specifically to Rule 4-9-108

ITEMS NOT REQUIRING CORRECTION

The following complaint items require no action by the Respondent:

Complaint Item 1A: New Fiberglass Installation with spa incomplete/unfinished.

Investigator’s Observation: Building of swimming pool and spa was complete at time of inspection.

Final inspection for building of pool was on 07/01/2019.

Governing Rule: NA

Complaint Item 2: The pool light breaker needs to be replaced with a GFCI type breaker per NEC code.

Investigator’s Observation: This item was corrected prior to jobsite inspection.

Governing Rule: NA

Complaint Item 3: since LED lights were used the contractor needs to install a approved waterbond device that is accessible for service.

Investigator’s Observation: No waterbond device was observed. Respondent said it was not required by local jurisdiction at the time this pool was built. Local jurisdiction building inspector confirmed device was not required at time pool was built.

Governing Rule: NA

Complaint Item 4: The builder will need to plug the abandoned KO in the load center box.

Investigator’s Observation: This item was corrected prior to jobsite inspection.

Governing Rule: NA

Complaint Item 9: The Spa/jet valve is not automated, the pool control system is designed to accommodate the automatic function of this valve, without automation one would have to go to the pool equipment to manually rotate the valve nowhere in the contract does it state that this function will not be provided, the entire contract lacks Specificity, Need to install valve actuator.

Investigator’s Observation: There is insufficient evidence to support this complaint item. The contract

does not specify the inclusion of this function.

Governing Rule: NA

Complaint Item 10: The spa jets fail to venture. Three of the four jets fail to function as jets. This could be due to improper installation of the jet bodies or the jet nozzles or a pool hydraulic design, not enough flow, further investigation will be required. Based on the photographic evidence the jet plumbing flow is not balanced.

Investigator’s Observation: The jets in spa were working properly during the jobsite inspection. (See picture 13)

Governing Rule: NA

Complaint Item 12: Both skimmers need to be removed to allow for the repair of the fiberglass shell to allow the skimmers to be raised and plumbed to industry standards.

Investigator’s Observation: Both skimmers should be properly relocated to the correct height, if that requires fiberglass and tile repairs, then respondent should correct by appropriate methods. This issue was addressed in complaint item 11.

Governing Rule: NA

Complaint Item 13: When the skimmers are reinstalled it will be necessary to install the main drain through the main skimmer and add a equalizer line per industry standards to the secondary skimmer.

Investigator’s Observation: This issue was addressed in complaint item 11.

Governing Rule: NA

Complaint Item 14: To allow for flow control of the skimmers as stated in an email form the respondent dated June 20, 2018 regarding skimmer flow control it will be necessary to install a three part valve between the skimmer lines to allow flow from each skimmer to be regulated as it is now the secondary skimmer has no flow, this would be true regardless of the main drain.

Investigator’s Observation: This issue was addressed in complaint item 11.

Governing Rule: NA

Complaint Item 16: The respondents contract states that he is responsible for the startup. Due to chemical automation being installed it is necessary for salt to be added to the pool to properly balance the water using the chemical automation. Contractor also states they will set the system up and show the owner how to use said automation. This has not happened.

Investigator’s Observation: Complainant’s representative and respondent reported pool was completed in April of 2019 and final inspection of pool was on 07/01/2019. Respondent reported the start-up was done at time of completion of pool and several other times with complainant. Any changes or corrections due to this complaint and directive should be explained to complainant and any new or changed instructional information on the operation of the pool equipment should be provided to the complainant. (See picture 22)

Governing Rule: NA

Complaint Item 17: If the contractor is unable to teach the customer how to properly use the equipment he is responsible for providing someone who is capable of properly programming and set up the system and show the client how to use said equipment.

Governing Rule: NA

Complaint Item 18: Contractor needs to make sure all voids and gaps in the grout, masonry, and caulking are properly sealed. During my inspection I found much of the silicone sealant was not properly allowed to fully cure before being submerged.

Investigator’s Observation: None observed at jobsite inspection

Governing Rule: NA

12. On or about January 8, 2020, Mr. Ramirez filed an addendum to the complaint. Mr. Ramirez added 19 complaint items.

13. On or about February 18, 2020, Investigator Perez conducted a

third job-site inspection.

14. On February 25, 2020, Investigator Perez issued a Directive to Blue Desert. Through the Directive, the Registrar directed Blue Desert to correct six of the complaint items no later than March 16, 2020. The February 25, 2020 Directive provided, in relevant part, as follows:

After investigation, the Registrar has verified that your work fails to meet minimum workmanship standards. A.R.S. § 32-1154(A)(3); A.A.C. R4-9-108. 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 March 16, 2020.

RESTRICTIONS

• You may not perform or hire other contractors to perform work that is outside the scope of your license.

• If your license is currently suspended for administrative reasons1, or is inactive, expired, or cancelled, you may not perform any corrective work nor contract in any manner, which includes hiring other contractors to perform work, until the

suspension of your license(s) has been lifted or your license(s) has been reactivated.

DIRECTIVE REQUIREMENTS

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

Compliance Item 7: INSTALL JUNCTION BOX OR JUNCTION BOX TRANSFORMER : “Run conduit from the mounting location up to the junction box such that the JUNCTION BOX IS NOT LESS THAN 8 INCHES (20CM) ABOVE THE MAXIMUM POOL OR SPA WATER LEVEL”.

This means the license is suspended for lack of qualifying party, lack of bond, nonrenewal, Recovery Fund payout,

or for any reason listed in A.R.S. § 32-1124(F).

Investigator’s Observation: A junction box was observed about 1⁄4” above spa water level. Installation instructions require junction box be installed not less than 8 inches above pool or spa water level.

Governing Rule: Workmanship Rule: ARS 32-1154(A) (3) specifically to Rule 4-9-108

Compliance Item 9: LOCATION AND CLEARANCE OF HEATER: A minimum clearance of two feet from wall and equipment such as filter for ample air intake is required per manufacturer installation instructions.

Investigator’s Observation: Pool pump, filter and heater were observed not installed per manufacturer’s installation requirements.

Governing Rule: Workmanship Rule: ARS 32-1154(A) (3) specifically to Rule 4- 9-108

Compliance Item 9B: PROPER PLACEMENT FOR DRAINAGE FROM CONDENSATION, TO AVOID FLOODING PUMP AND FILTER WHICH VOIDS

PUMP WARRANTY.

Investigator’s Observation: Water ponding was observed below pool equipment exceeding allowed level of 1/8”.

Governing Rule: Workmanship Rule: ARS 32-1154(A) (3) specifically to Rule 4-9-108

Compliance Item 11: HEATER BYPASS VALVES FOR NONUSE PERIODS: HEATING WILL NOT BE REQUIRED FOR MORE THAN A WEEK”

Investigator’s Observation: No heater bypass valve was observed during inspection. Respondent reported it was not required. Manufacturer’s instructions require bypass valve for heater.

Governing Rule: Workmanship Rule: ARS 32-1154(A) (3) specifically to Rule 4-9-108

Compliance Item 14: FILTER IMPROPERLY LOCATED/INSTALLED: (pg 4 Hayward swimclear filter cartridge installation instruction). “Required clearance

“B” side 18 inches”. Filter is 5 inches from wall.

Investigator’s Observation: Pool filter was observed about 6 inches from block wall and other pool equipment. Haywards owner’s manual requires 18 inch clearance.

Governing Rule: Workmanship Rule: ARS 32-1154(A) (3) specifically to Rule 4-9-108

Compliance Item 17: Hand rail at steps is discolored and stained and finish is degrading like that of ladder.

Investigator’s Observation: Hand rail was observed rusted/stained.

Respondent reported he included this item after the directive issued 12/24/2019 which included the same issue with pool ladder.

Governing Rule: Workmanship Rule: ARS 32-1154(A) (3) specifically to Rule 4- 9-108

ITEMS NOT REQUIRING CORRECTION

The following complaint items require no action by the Respondent:

Compliance Item 1: “AMENDMENTS TO THE 2014 NATIONAL ELECTRIC CODE – NFPA 70; Adoption Date = July 15, 2015, Effective Date = August 15,2015”

Investigator’s Observation: This item was addressed in previous inspection and subsequent directive issued on 12/24/2019.

Governing Rule: NA

Compliance Item 2: SPA JETS DO NOT VENTURI DO NOT FUNCTION PROPERLY.

Investigator’s Observation: Spa jets were working properly at time of inspection.

Governing Rule: NA

Compliance Item 3: LEAK DETECTION/ ASSESSMENT. Addressed with low flooded skimmer complaint and corrective action directive. Significant concern for other leaks: Automatic water leveler continuously on.

Investigator’s Observation: This item was addressed in previous inspection and subsequent directive issued on 12/24/2019. During inspection, respondent was in process of finalizing repairs.

Governing Rule: NA

Compliance Item 4: POOL /SPA SYSTEM CONFIGURATION FOR AUTOMATIC SUCTION CLEANER FEATURE.

Investigator’s Observation: This item was addressed in previous inspection and subsequent directive issued on 12/24/2019.

Governing Rule: NA

Compliance Item 5: WARRANTY: “ The luminaire has been installed by qualified personnel in compliance with the National Electrical Code (NEC) or Canadian Electric Code (CE code) and any applicable local codes and/or

regulations”.

Investigator’s Observation: This item was addressed in complaint item 1.

Governing Rule: NA

Compliance Item 6: INSTALLATION LOCATION: “BE SURE TO CONSIDER THE DIRECTION OF EMITTED LIGHT AND TAKE CARE NOT TO POINT

Investigator’s Observation: This item was corrected/repaired by respondent prior to inspection.

Governing Rule: NA

Compliance Item 8: HEATER WARRANTY: “The heater is valid only if the product is installed according to the Hayward specifications”. (Pg 22 HMO).

Investigator’s Observation: This is not a workmanship issue therefore, the registrar will not include this item in directive.

Governing Rule: NA

Compliance Item 9A: DESIRED TEMPERATURE NOT REACHED: “THE HEATER IS RUNNING BUT DESIRED TEMPERATURE IS NOT REACHED”. “EVAPORATOR RESTRICTED DUE TO IMPROPER LOCATION”.

Investigator’s Observation: This item was not presented/observed at inspection.

Governing Rule: NA

Compliance Item 10: HEATER PLUMBING SPECIFICATIONS: “PLAN PLUMBING LAYOUT CAREFULLY”. “Long runs of piping to and from pool (over

25 feet), should be installed to prevent heat loss to ground or air”

Investigator’s Observation: Pool heater was observed approximately 38 feet from pool/spa. Hayward Pool Products was contacted about requirement to insulate water lines over 25 feet and representative said it was recommended

however, not required.

Governing Rule: NA

Compliance Item 12: FLOW METER: Flow meter at pump discharge to check that flow rate does not exceed 75 gpm, if so, bypass loop is required.

Investigator’s Observation: At inspection, respondent reported flow meter was not required. Haywards’ owner’s manual page 27 a flow meter “may” be required. At time of inspection, there is insufficient evidence to establish if a flow meter is required

Governing Rule: NA

Compliance Item 13A: WARRANTY: “Parts which fail or become defective during the warranty period, except as a result of freezing, negligence, improper installation, use, or care, shall be repaired or replaced, at our option without

charge, within 90 days of the receipt of defective product, barring unforeseen delays.

Investigator’s Observation: This item was addressed in complaint item 9.

Governing Rule: NA

Compliance Item 13B: PUMP LOCATION: “Select a well-drained area that will not flood when it rains”.

Investigator’s Observation: This item was addressed in complaint item 9.

Governing Rule: NA

Compliance Item 15: Contact states builder will clean up yard following completion of project. Builder did not ask permission upon initial work performed grading area for decking and then dispersed dirt to side yards changing topography whereas water now drains towards home. Dirt mounds left in northeast corner of yard.

Investigator’s Observation: Back yard was observed to be clean. Back yard soil was disturbed during inspection due to current work being done around pool however, it had appropriate grade level.

Governing Rule: NA

Compliance Item 16: Broken boards not replaced when builders workers hit corner of patio with machinery corrective work was only paint and bonding material.

Investigator’s Observation: Northwest corner of back patio was observed to have repair work. Respondent confirmed workers repaired fascia board after damaging it. Corrective work met the minimum workmanship standards.

Governing Rule: NA

15. On April 8, 2020, Investigator Perez conducted a compliance job-site inspection. Investigator Perez concluded that Blue Desert had not corrected items 7 and 19 from the Directive issued in December of 2019. Investigator Perez concluded that Blue Desert had not corrected items 9, 9B, 11, 14, and 17 from the Directive issued in February of 2020. Investigator Perez’s notes regarding the April 8, 2020 compliance job-site inspection provided, in relevant part, as follows:

Compliance Findings: Respondent did not comply with all items on directive as noted below. Findings are noted in italic font at the end of each complaint item

From directive issued on July 5th, 2019-

Complaint Item 5A: Spa incomplete

Investigator’s Observation: Spa is complete as final inspection was done and approved on 7-1-2019 however, 3 jet inserts were missing at time of inspection

Governing Rule: Workmanship Rule: ARS 32-1154(A) (3) specifically to Rule 4-9-108

Complainant reported this item was corrected as per directive.

Complaint Item 7: 2nd skimmer not functioning properly (added at JSI)

Investigator’s Observation: Skimmer closer to pump works properly however, 2nd skimmer (farther away from pump) has no suction. Respondent reported pool was designed with two skimmers however, complainant requested adding two main drains at bottom of pool. Respondent attempted to discourage complainant from adding two main drains as it was unnecessary and would not work properly. The size of the motor is a variable speed 1.85 horse power. Complainant confirmed the requested two main drains along with two skimmers. Respondent said he would go back and correct second skimmer to balance drain system.

Governing Rule: Workmanship Rule: ARS 32-1154(A) (3) specifically to Rule 4-9-108

This item was corrected as per directive as both skimmers were working properly at time of inspection.

Complaint Item 10: Pool assembly on North side of pool is not leveled.

Investigator’s Observation: Pool assembly showing over tile is not symmetrical

Governing Rule: Workmanship Rule: ARS 32-1154(A) (3) specifically to Rule 4-9-108

This item was corrected as per directive as North side skimmer was symmetrical (leveled).

From directive issued on December 24th, 2019-

Complaint Item 1B: All breakers in load center should be properly labeled.

Investigator’s Observation: The breakers in the pool panel were observed without labels.

Governing Rule: Workmanship Rule: ARS 32-1154(A) (3) specifically to Rule 4-9-108

Complainant reported this item was corrected as per directive.

Complaint Item 5: On the horizontal 2” x 4” J-box the locking nuts are present and will need to be removed to form a water tight seal.

Investigator’s Observation: The junction box was observed to not have a water tight seal on the right side connector. Box should be sealed from possible water penetration.

Governing Rule: Workmanship Rule: ARS 32-1154(A) (3) specifically to Rule 4-9-108

This item was corrected as per directive as J-box was observed to have water tight seal.

Complaint Item 6: It will be necessary to install appropriate sized common and ground wires per 2014 NEC250.122 from the sub panel to the pool control load center.

Investigator’s Observation: No #8 bare copper grounding wire was observed.

Contract addendum dated 06/16/2018 calls for its installation.

Governing Rule: Workmanship Rule: ARS 32-1154(A) (3) specifically to Rule 4-9-108

This item was corrected as per directive as copper grounding wire was observed installed on sub-panel.

Complaint Item 7: The concrete pilaster the Acid injection tank sits on should be removed. In its current state it poses a serious hazard to spill and to potentially

harm someone. The acid container needs to sit on the ground.

Investigator’s Observation: Container was observed on a pilaster without being secured to base. Respondent offered to secure it at JSI.

Governing Rule: Workmanship Rule: ARS 32-1154(A) (3) specifically to Rule 4-9-108

This item was not complied with as per directive as acid injection tank was observed on ground concrete pad however, it was not secured.

Investigator’s Observation: No check valve was observed before location of acid being injected as required by manufacturer.

Governing Rule: Workmanship Rule: ARS 32-1154(A) (3) specifically to Rule 4-9-108

This item was corrected as per directive as a check valve was observed installed.

Complaint Item 11: The skimmers were not properly installed. After speaking with the pool manufacturer they are approximately 2” to low, this is evident in the photos as well, also noted in a recent leak detection the skimmers leak out over the top of the skimmers due to absence of skimmer extension, the mall drain was not properly plumbed through the main skimmer. See report.

plumbed and functioning properly. Skimmers and main drains should be properly plumbed to meet industry standards, comply with entrapment requirements and be able to be controlled/balanced as necessary for system to operate properly.

Governing Rule: Workmanship Rule: ARS 32-1154(A) (3) specifically to Rule 4-9-108

This item was corrected as per directive as both skimmers were at appropriate level (height) and working properly at time of inspection

Investigator’s Observation: Respondent should provide evidence to support system was connected as per manufacturer’s recommendations and make corrections as needed.

Governing Rule: Workmanship Rule: ARS 32-1154(A) (3) specifically to Rule 4-9-108

This item was corrected as per directive as the vacuum line was working properly at time of inspection.

Complaint Item 19: Pool ladder rusted.

Investigator’s Observation: Pool ladder was observed rusted at jobsite inspection. Respondent should determine cause and correct by appropriate methods.

Governing Rule: Workmanship Rule: ARS 32-1154(A) (3) specifically to Rule 4-9-108

This item was not complied with as per directive as pool ladder was observed rusted.

From directive issued on February 25th, 2020-

Compliance Item 7: INSTALL JUNCTION BOX OR JUNCTION BOX TRANSFORMER : “Run conduit from the mounting location up to the junction box such that the JUNCTION BOX IS NOT LESS THAN 8 INCHES

(20CM) ABOVE THE MAXIMUM POOL OR SPA WATER LEVEL”.

Governing Rule: Workmanship Rule: ARS 32-1154(A) (3) specifically to Rule 4-9-108

Complainant reported this item was corrected as per directive.

Investigator’s Observation: Pool pump, filter and heater were observed not installed per manufacturer’s installation requirements.

Governing Rule: Workmanship Rule: ARS 32-1154(A) (3) specifically to Rule 4-9-108

This item was not complied with as per directive as pool equipment was observed in same condition as seen in previous inspection.

Compliance Item 9B: PROPER PLACEMENT FOR DRAINAGE FROM CONDENSATION, TO AVOID FLOODING PUMP AND FILTER WHICH VOIDS

PUMP WARRANTY.

Investigator’s Observation: Water ponding was observed below pool equipment exceeding allowed level of 1/8”.

Governing Rule: Workmanship Rule: ARS 32-1154(A) (3) specifically to Rule 4-9-108

This item was not complied with as per directive as pool equipment was observed in same condition as seen in previous inspection.

Compliance Item 11: HEATER BYPASS VALVES FOR NONUSE PERIODS: HEATING WILL NOT BE REQUIRED FOR MORE THAN A WEEK”

Investigator’s Observation: No heater bypass valve was observed during inspection. Respondent reported it was not required. Manufacturer’s instructions require bypass valve for heater.

Governing Rule: Workmanship Rule: ARS 32-1154(A) (3) specifically to Rule 4-9-108

This item was not complied with as per directive as no heater bypass valve was observed.

Compliance Item 14: FILTER IMPROPERLY LOCATED/INSTALLED: (pg 4 Hayward swimclear filter cartridge installation instruction). “Required clearance

“B” side 18 inches”. Filter is 5 inches from wall.

Investigator’s Observation: Pool filter was observed about 6 inches from block wall and other pool equipment. Haywards owner’s manual requires 18 inch clearance.

Governing Rule: Workmanship Rule: ARS 32-1154(A) (3) specifically to Rule 4-9-108

This item was not complied with as per directive as pool equipment was observed in same condition as seen in previous inspection.

Compliance Item 17: Hand rail at steps is discolored and stained and finish is degrading like that of ladder.

Investigator’s Observation: Hand rail was observed rusted/stained.

Respondent reported he included this item after the directive issued 12/24/2019 which included the same issue with pool ladder.

Governing Rule: Workmanship Rule: ARS 32-1154(A) (3) specifically to Rule 4-9-108

This item was not complied with as per directive as pool hand rail was observed rusted.

16. On April 15, 2020, the Registrar issued a Citation against Blue Desert’s license. Through the Citation, the Registrar alleges that Blue Desert may have

violated Ariz. Rev. Stat. section 32-1154(A)(3)(specifically, Ariz. Admin. Code section R4-9-108; and Ariz. Rev. Stat. section 32-1154(A)(22). The Citation shows that if the Administrative Law Judge finds that the alleged charges are valid, the Registrar may suspend or revoke the license of Blue Desert.

17. On or about August 10, 2020, Investigator Perez conducted a pre-hearing inspection. Investigator Perez concluded that Blue Desert had corrected the complaint listed in all of the Registrar’s Directives, with the exception of one item from the February 25, 2020 Directive.

18. The hearing date was continued to October 22, 2020.

19. On October 13, 2020, Investigator Perez conducted a second pre-hearing inspection. Investigator Perez concluded that Blue Desert had corrected the last complaint item and had fully complied with the Registrar’s Directives.

20. The hearing was continued to January 13, 2021.

21. A hearing was held on January 13, 2021. At hearing, Mr. Ramirez testified on behalf of himself and presented the testimony of Mr. Howard. Mr. Ramirez submitted exhibits 1 through 4. Investigator Perez testified regarding his investigation of the compliant and the issuance of the Citation. Mr. Herrera testified on behalf of himself.

22. Investigator Perez testified that Blue Desert had corrected the items listed in the Directives.

23. Mr. Ramirez asserted that Blue Desert failed to complete the pool installation according to the manufacturer’s specifications and instructions. Mr. Ramirez stated that he explained to Mr. Herrera before entering into the contract that he was a traveling health care provider and that wanted a fiber glass pool. Mr. Ramirez expressed that he desired smart modules.

24. Mr. Ramirez testified that Blue Desert’s work did not satisfy minimum workmanship standards. Mr. Ramirez disagreed with Investigator Perez that Blue Desert had corrected all of the complaint items. Mr. Ramirez asserted that he does not expect anyone to be perfect. However, Mr. Ramirez believed that Blue Desert should have taken corrective action in a timely manner. Mr. Ramirez stated that he wanted Blue Desert to admit its error. Mr. Ramirez asserted that Blue Desert took advantage of him.

25. Mr. Howard opined that the pool is operating and functioning. However, Mr. Howard asserted that the project was not finished. Mr. Howard stated that the vacuum line was not corrected because the pool was required to be automated and instead, the pool requires manual operation. Regarding complaint item 3, Mr. Howard stated that a “nitchless” LED light should have been installed in order to bond with the water. Regarding complaint item 11, Mr. Howard stated that the main drains and skimmers were not plumbed properly. Regarding complaint item 10, Mr. Howard stated that on February 18, 2020, he took out all of the spa jets and reinstalled them in order to get the jets to function properly. Mr. Howard stated Blue Desert’s use of silicone was improper. Mr. Howard concluded that Blue Desert failed to deliver a fully functioning pool with balanced water chemistry.

26. Mr. Howard could not recall the dates that he physically inspected

Mr. Ramirez’s pool. However, Mr. Ramirez stated that Mr. Howard conducted physical inspections of the pool on September 18, 2019, in December 2019, and on February 18, 2020.

27. Mr. Herrera explained that Blue Desert appropriately corrected all of the items listed in the Directives.

28. Administrative notice is taken of Respondent’s prior License record as reflected on the Registrar’s public website on January 28, 2021. Such prior License record reflects that Respondent’s License No. 107443 was first issued on May 24, 1995 and is current. Such prior License record reflects that Respondent’s License No. 107426 was first issued on May 24, 1995, and is current. Such prior License record also reflects that Respondent’s licenses have never been disciplined.

CONCLUSIONS OF LAW

This matter lies within the Registrar’s jurisdiction. See A.R.S. § 32-

1154(A).

The burden of proof at an administrative hearing falls to the party

asserting a claim, right, or entitlement and the standard of proof on all issues in these matters is by a preponderance of the evidence. See A.A.C. R2-19-119.

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).

4. Construction is not a perfect art, however, and contractors generally must be afforded an opportunity to correct their potential statutory violations before their licenses may be suspended or revoked.

5. The preponderance of the evidence shows that Blue Desert had not performed its work in professional manner at the time that the Registrar’s Directives were issued. The preponderance of the evidence shows that Blue Desert violated Ariz. Rev. Stat. section 32-1154(A)(22) by failing to comply with the Registrar’s Directives by the deadlines.

6. The preponderance of the evidence shows that Blue Desert has corrected all of the items listed in the Registrar’s Directives. Therefore, it is not appropriate in this case to impose discipline or a civil penalty.

RECOMMENDed order

In view of the foregoing, it is recommended that this matter be dismissed.

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.

Done this day, January 28, 2021.

/s/ Velva Moses-Thompson

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors