ALJDEC decisions subject to certification as final

2021A-01252-CHC-ROC · Registrar of Contractors · 2021-10-27

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Steve K Tippett,

COMPLAINANT

Boa Vista Pools and Spas LLC

DBA: Premier Pools & Spas,

License No. ROC 313610,

RESPONDENT

No. 2021A-01252-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: October 15, 2021

APPEARANCES: Steve K. Tippett appeared on his own behalf. Respondent Boa Vista Pools and Spas LLC, doing business as Premier Pools & Spas did not appear.

ADMINISTRATIVE LAW JUDGE: Tammy L. Eigenheer

_____________________________________________________________________

FINDINGS OF FACT

Boa Vista Pools and Spas LLC, doing business as Premier Pools & Spas (Respondent) is the holder of License No. 313610 issued by the Arizona Registrar of Contractors (Registrar).

On or about September 21, 2020, Steve K. Tippett (Complainant) signed a contract with Respondent for the construction of a new swimming pool.

On or about March 25, 2021, the Registrar received a Complaint against Respondent from Complainant alleging poor work with respect to the project.

The Registrar assigned the complaint to Investigator Mike Springer. After a jobsite inspection, Investigator Springer 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 9th,2021.

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: 1 - Pebble Tec finish: The first week of April, the Pebble tec finish was applied incorrectly. During the filling process, cracks showed up around the stairs and the pool needed to be drained and repaired. As of May 18th, Cracks are still showing around the stairs and corners as well as new "black" spots where it appears the pebble tec finish is gone or very thin showing the gunite.

Investigator’s Observation: Cracks have been repaired, but the coloring does not match the surrounding finish on the top step. There are 4 circles that do not match. The patch along the backside of the step blends in sufficiently

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.

Following the issuance of the written directive, Complainant contacted Respondent, who indicated it would send someone out to look at the project. After the deadline in the directive expired, Investigator Springer was notified no corrective work had been performed.

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; and A.R.S. § 32-1154(A)(22).

The Registrar referred the matter to the Office of Administrative Hearings, an independent state agency, for an evidentiary hearing.

The Registrar issued a Notice of Hearing, setting a hearing at 1:00 p.m. on October 15, 2021, via Google Meet. The Registrar mailed copies of the Notice of Hearing to Respondent at its address and email address of record.

On or about September 9, 2021, this Administrative Law Judge issued an Order providing the information necessary to connect to the hearing via Google Meet. The Order was sent to Respondent at its email address of record.

The hearing was held on October 15, 2021. Complainant testified on his own behalf and submitted three exhibits.

Respondent did not request to appear in person and did not request that the hearing be continued. Although the start of the hearing was delayed 15 minutes, Respondent did not appear through an authorized member, employee, or attorney. Consequently, Respondent did not present any evidence to defend its license.

Investigator Springer testified as to his involvement in this matter. Investigator Springer stated that he did not conduct a compliance inspection because no corrective work was attempted.

Complainant testified that he was out of town when the directive was issued, but he returned prior to the August 9, 2021 deadline. Complainant stated that he contacted Respondent regarding the written directive to see what would be done to correct the issues. Complainant indicated that Respondent said it would send someone out to see what needed to be done, but to Complainant’s knowledge, no one ever inspected the project.

Administrative notice is taken of Respondent’s prior License record on October 25, 2021. Such prior License record reflects that Respondent’s License No. 313610 was first issued on May 30, 2017, and was active. Such prior License record also reflects that there were no other open complaints, two prior complaints resulting in discipline, and two prior resolved/settled complaints against Respondent’s license.

CONCLUSIONS OF LAW

This matter lies within the Registrar’s jurisdiction. See A.R.S. § 32-1101 et seq.

The Notice of Hearing that the Registrar mailed to Respondent at its address and email address of record was reasonable, and Respondent is deemed to have received notice of the hearing. See A.R.S. § 41-1092.04; A.R.S. § 41-1061(A).

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 Vazanno 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 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.

The evidence established that Respondent did not attempt to complete the corrective work following the Directive being issued. 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. 313610 for a period of ten (10) 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)(5), 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 40 days from the date of that certification.

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-137160-45720000Done this day, October 27, 2021.

/s/ Tammy L. Eigenheer

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors-54864001

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-137160-45720000