ALJDEC decisions subject to certification as final

2021A-03031-CHC-ROC · Registrar of Contractors · 2021-12-16

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

David Luken,

COMPLAINANT

T L C Pool & Spas LLC

License No. ROC 327685,

RESPONDENT

No. 2021A-03031-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: December 15, 2021

APPEARANCES: Complainant David Luken appeared on his own behalf. Respondent T L C Pool & Spas LLC did not appear.

ADMINISTRATIVE LAW JUDGE: Tammy L. Eigenheer

_____________________________________________________________________

FINDINGS OF FACT

T L C Pool & Spas LLC (Respondent) is the holder of License No. 327685 issued by the Arizona Registrar of Contractors (Registrar).

On or about June 5, 2020, David Luken (Complainant) entered into a contract with Respondent for the construction of a swimming pool including decking and hardscaping. The total price for the project at the time of the contract was $56,367.28. Complainant paid a total of $83,561.00 towards the project.

On or about July 1, 2021, 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 Randy Morris. After a jobsite inspection, Investigator Morris 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 September 9, 2021.

. . . .

DIRECTIVE REQUIREMENTS

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

Complaint stated that the Respondent has not been onsite in excess of 6 weeks and no additional work has been performed. Observed that the pool and spa installation was not complete or functional. Some equipment was present (filters and pumps), but other equipment was not present or installed, such as valves, switches, controls, heater, in-pool and in-spa lights, gas connections. Both the pool and spa were observed to be in a generally drained condition, however, both systems had accumulations of dirty rain water ponding at the bottoms. All of the complaint items concern failure of the Respondent to complete the work/contract in a timely manner and abandonment of the contract.

This Investigator performed a permit search using the City of Gilbert Building Department public records website. It was noted that a permit was obtained on 10/28/20, the last inspection was performed on 12/3/20 and the permit expired on 6/1/21.

Based upon the expiration of the permit and the lack of presence on the job site, it is verified that the Respondent has abandoned the project/contract.

Compliance Item: - 1. “1. pool pumps (2) and filter are not installed. There is no backwash valve installed with the pool filter. Note that there is no circulation in the pool despite the fact that pebble was installed over 30 days ago and water has been in the pool for 30 days”

Investigator’s Observation: Observed missing and un-installed pool/spa equipment at the rear yard at/or near designated equipment location, equipment has not been connected to any electrical source, water supply or pool/spa supply/return piping. Noted missing pool/spa piping and valves. System is not functional or near completion, the allegation is verified.

. . . .

Compliance Item: - 2. “2. pool plumbing to include valving to operate the pool and spa are not installed. valving to control the water features is not installed. only the pre-plumbing of the pool is complete.”

Investigator’s Observation: See compliance Item #1, pool/spa plumbing/piping has not been fully installed and is not functional. The allegation is verified.

. . . .

Compliance Item: - 3. “3. Electric for the pool is not installed, there is no power ran to the area for pool pumps and control box is not installed.”

Investigator’s Observation: See compliance Item #1, pool/spa electrical system has not been installed and is not functional. The allegation is verified.

. . . .

Compliance Item: - 4. “4. Conduits for all 3 in pool light fixtures are not evident, there appears to be one light conduit missing.”

Investigator’s Observation: See compliance Item #1, pool/spa electrical system has not been installed and is not functional. The allegation is verified.

. . . .

Compliance Item: - 5. “5. the heater for the pool/spa is not installed.”

Investigator’s Observation: See compliance Item #1, pool/spa heater system was not present at the job site and has not been installed and is not functional. The allegation is verified.

. . . .

Compliance Item: - 6. “6. in-floor nozzles for the cleaning system are not installed.”

Investigator’s Observation: See compliance Item #1, pool/spa in-floor cleaning system has not been fully installed and is not functional. The allegation is verified.

. . . .

Compliance Item: - 7. “7. gas hookups for the heater and fire pit are not completed and connected to the gas line.”

Investigator’s Observation: See compliance Item #1, pool/spa gas heater and fire pit gas system has not been fully installed and is not functional. The allegation is verified.

. . . .

Compliance Item: - 8. “8. Light fixtures (2 pool, 1 spa) are not installed”

Investigator’s Observation: See compliance Item #1, pool/spa electrical system, including the pool and spa lights, has not been installed and is not functional. The allegation is verified.

. . . .

Compliance Item: - 9. “9. air blower for the spa is not installed”

Investigator’s Observation: See compliance Item #1, spa blower system was not present at the job site and has not been installed and is not functional. The allegation is verified.

. . . .

Compliance Item: - 10. “10. 2 modules for the control head of the in floor cleaning system are not installed”

Investigator’s Observation: See compliance Item #1, in-floor cleaning system control heads were not present at the job site and have not been installed and the system is not functional. The allegation is verified.

. . . .

Compliance Item: - 11. “11. pebble surface is extremely rough in spots and needs to be buffed to eliminate rough edges.”

Investigator’s Observation: Observed even pool/spa surfaces which may be due exposed surfaces to damage from sun and excess heat. The pool/spa surfaces are also discolored and stained due to standing stagnant water in the bottom of both systems. The pool/spa equipment will need repair/corrective actions prior to refilling of the pool/spa. The allegation is verified.

. . . .

Compliance Item: - 12. “12. pebble surface is having significant dip and indentations on multiple spots in spa, needs to be drained and surface repaired.”

Investigator’s Observation: See Compliance Item #11, the allegation is verified.

. . . .

Compliance Item: - 13. “13. Grout from pool deck is visible on pool tile grout and needs to be removed.”

Investigator’s Observation: Excess grout has not been removed from the pool tile, the allegation is verified.

. . . .

Compliance Item: - 16. “16. pool decking is not fully seated in many locations, needs to be further seated with sand to eliminate movement of decking.”

Investigator’s Observation: Observed sand voids and loose/wobbly pool deck pavers during the JSI. The allegation is verified.

. . . .

Compliance Item: - 18. “18. There are gaps in the coping that need to be filled with grout/caulk in the corners of the hot tub and other corner joints.

Investigator’s Observation: Gaps/voids observed at coping observed during the JSI. The allegation is verified.

. . . .

Compliance Item: - 19. “19. The exterior wall which was removed and replaced to dig pool needs to incorporate appropriate drainage to allow for water runoff.”

Investigator’s Observation: No drainage opening observed at the base of the re-built concrete block wall at the left front side of the residence (removed for construction of the pool/spa). Lack of drainage opening will affect landscape drainage to the front yard. The allegation is verified.

. . . .

Compliance Item: - 20. “20. The exterior wall section that was removed and then replaced needs to be repainted to match the rest of the wall.”

Investigator’s Observation: The concrete block walls at the left front side of the residence (removed for construction of the pool/spa) has been re-built with a stucco finish at the street side, however, the stucco has not been painted to match the surrounding block walls. The allegation is verified.

Following the issuance of the written directive, Respondent delivered and installed some pumps, but did not complete the bulk of the work required under the directive. After the deadline in the directive expired, Investigator Morris was notified the corrective work had not been completed.

The Registrar issued a Citation against Respondent, charging possible violations of A.R.S. § 32-1154(A)(1); A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108(A); 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 on 9:00 a.m. on December 15, 2021. The Registrar mailed copies of the Notice of Hearing to Respondent at its address and email address of record.

On or about December 7, 2021, the Office of Administrative Hearings issued an order to the parties including the information necessary to connect to the Google Meet hearing. The order was sent to Respondent at its email address of record.

A hearing was held on December 15, 2021. Complainant testified on his own behalf.

Respondent 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 Morris testified that he investigated the permit status for the project and determined that the permit was issued on October 28, 2020, and expired on June 1, 2021. Based on that information together with the state of the project, Investigator Morris determined that Respondent had abandoned the project.

Complainant testified that Respondent performed minimal work after the directive was issued, but the bulk of the project remained uncompleted. Complainant also stated that the longer the pool sat incomplete, the more damage occurred to the structure.

Administrative notice is taken of Respondent’s prior License record on December 15, 2021. Such prior License record reflects that Respondent’s License No. 327685 was first issued on February 14, 2020, and was active. Such prior License record also reflects that there were no other open or prior complaints against Respondent’s license.

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 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 submitted a bid for Complainant’s project and did not perform the work in the bid. Accordingly, Complainant established that Respondent abandoned the contract and failed to complete the project in a professional and workmanlike manner in violation of A.R.S. § 32-1154(A)(1) and 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 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).

Respondent’s failure to appear at the hearing in this matter to present any evidence to defend its license was significant. It was of particular concern to the Administrative Law Judge that Respondent had only been licensed for approximately 4 months at the time of the contract and the project remained incomplete 18 months later, including the state of the project at the time Respondent abandoned the project.

RECOMMENDED ORDER

Based on the foregoing, it is recommended that on the effective date of the Order, the Registrar shall revoke Respondent’s License No. 327685.

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.

-54864001

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-137160-45720000Done this day, December 16, 2021.

/s/ Tammy L. Eigenheer

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors-54864001

001

-137160-45720000