ALJDEC decisions subject to certification as final

2022A-02134-CHC-ROC · Registrar of Contractors · 2022-11-18

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Elizabeth C Garrett,

COMPLAINANT

Premier Paradise Inc.

License No. ROC 298760,

RESPONDENT

No. 2022A-02134-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: November 2, 2022

APPEARANCES: Complainant Elizabeth C. Garrett appeared on her own behalf. Steven Yoder, Director of Operations and Quality Control, appeared on behalf of Respondent Premier Paradise Inc.

ADMINISTRATIVE LAW JUDGE: Tammy L. Eigenheer

_____________________________________________________________________

FINDINGS OF FACT

Premier Paradise Inc. (Respondent) is the holder of License No. 298760 issued by the Arizona Registrar of Contractors (Registrar).

On or about March 6, 2021, the Jeffrey D and Elizabeth C Garrett Trust entered into a Residential Resale Real Estate Purchase Contract with Elizabeth C. Garrett, with Invergordon Investments LLC. The home included a swimming pool, spa, and reflection pond built by Respondent.

On or about April 13, 2022, the Registrar received a Complaint against Respondent from Complainant alleging poor work with respect to the project.

The Registrar assigned the complaint to Investigator Mark Nipp. On June 7, 2022, after a jobsite inspection, Investigator Nipp 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 June 27, 2022.

. . . .

DIRECTIVE REQUIREMENTS

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

Compliance Item #1: The pool has sharp surfaces, meaning when in the pool sharp pieces of pebble tec along with holes in pool where pebble tec was not properly installed

Investigator’s Observation: Verified

I was able to physically inspect the edges of the pool only, where I could put my arm I the water. I noted that there are substantial rough areas in the spa, Baja step, and edges of the pool. I saw that the rough areas appeared to have exposed aggregate and/or missing aggregate that was sharp. This did not appear to be a result of mineral deposits or pool water chemistry. I also saw several areas on the bottom surface (deep end) where there were visible depressions or voids in the pebble tec (not visible in pictures). The respondent agreed there were sharp surfaces and voids in the pebble tec present in the pool and agreed they required correction. Contractor should provide an acceptable plaster finish before substantial completion.

The respondent should correct by appropriate means.

Reference Picture(s) 2

Governing Rule: A.R.S. § 32-1154(A) (3), Violation of any rule adopted by the registrar; Namely R 4-9-108(a): A contractor shall perform work in a professional and workmanlike manner.

Compliance Item #8: The spa drain is too high, is missing a screw, and the screws are silver instead of black.

Investigator’s Observation: Verified – Missing Screws

I saw the side induction spa drain appeared to be installed correctly. I also saw one screw was missing and one screw had a broken head. The respondent should correct replace the screws. The respondent stated the screws are stainless steel to prevent corrosion and painted screws would not hold up in the chemical/water environment. A contractor shall perform all work in a professional and workmanlike manner.

The respondent should correct by appropriate means.

Reference Picture(s) 1

Governing Rule: A.R.S. § 32-1154(A) (3), Violation of any rule adopted by the registrar; Namely R 4-9-108(a): A contractor shall perform work in a professional and workmanlike manner.

Following the issuance of the written directive, Respondent failed to correct those items identified in the written directive.

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).

Investigator Nipp testified as to his observations of the project. Investigator Nipp stated that he could not verify other items Complainant raised because the plans did not specify the exact equipment and finishes to be in or around the reflection pond. Investigator Nipp found no evidence in the purchase contract or other materials provided by Complainant to establish that in-floor cleaners or a rain curtain fountain were meant to be included in the project.

Complainant testified specifically as to two issues the Registrar failed to verify in the jobsite inspection and include in the written directive as requiring correction. Complainant indicated that the plans for the reflection pond included in-floor cleaners that Respondent failed to install. Complainant also stated that the plans required the installation of a rain curtain fountain to be installed at the reflection pond, and Respondent only installed the plumbing for such a water feature but failed to install the fountain itself.

Mr. Yoder testified that in-floor cleaners in the reflection pond would ruin the aesthetic of the reflection pond as it would prevent the still water effect. Mr. Yoder also indicated that nothing in Respondent’s contract with the seller included the completion of a rain curtain fountain.

Administrative notice is taken of Respondent’s prior License record on November 18, 2022. Such prior License record reflects that Respondent’s License No. 298760 was first issued on May 15, 2015, and is 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 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 evidence established that Respondent’s work was not in conformity with the Registrar’s standards as to the items identified in the written directive. 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 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. 298760 for a period of one day.

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

001

-137160-45720000Done this day, November 18, 2022.

/s/ Tammy L. Eigenheer

Administrative Law Judge

Transmitted electronically or by mail to:

Jeffrey Fleetham, Director

Registrar of Contractors

Elizabeth C Garrett

[email redacted]

Mark Nipp

[email redacted]

Premier Paradise Inc.

[email redacted]

By-54864001

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-137160-45720000 Miranda Alvarez

Legal Secretary