ALJDEC decisions subject to certification as final

2022A-03090-CHC-ROC · Registrar of Contractors · 2022-11-03

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Jennifer Miller

COMPLAINANT,

v.

Innovative Pool and Spa Systems, Inc.

DBA: Innovative Pool Excavation

License No. ROC 323229

RESPONDENT.

No. 2022A-03090-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: September 26, 2022 with the record held open until October 17, 2022 for the sole purpose of receiving written closing statements.

APPEARANCES: Marilee Miller Clarke, Esq. appeared on behalf of Complainant Jennifer Miller (Ms. Miller). Jeremy T. Goad, Esq. appeared on behalf of Respondent Innovative Pool and Spa Systems, Inc. (Innovative).

ADMINISTRATIVE LAW JUDGE: Velva Moses-Thompson

_____________________________________________________________________

FINDINGS OF FACT

1. On or about July 12, 2021, Ms. Miller and Innovative entered into a home remodeling and landscaping contract.

2. The contract included the following language, “Contract provides, “Price includes proper slope and grading for drainage for any hardscape / decking installation. Paver type is MSI Arterra 24"x24" Porcelain Paver in "LivingStyle Pearl." See the Registrar’s Administrative Record, pg. 67.

3. On or about September 13, 2020, Innovative started work.

4. On or about March 28, 2022, Innovative stopped work.

5. On or about April 20, 2022, Ms. Miller filed a complaint with the Arizona Registrar of Contractors (Registrar or ROC) alleging poor work and abandonment on the part of Innovative.

6. On May 16, 2022, Registrar Investigator Chris Fultz conducted a job-site inspection.

7. On or about June 2, 2022, the Registrar issued a Directive to Innovative that provided, in relevant part, 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 30th, 2022.

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 reasons , 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: 2 - Pool Finish - In Scope, but do not believe the workers were employed by Innovative and they were subcontracted – Pool Finish has white splotches, visible lines, and multiple unexposed areas of pebble. We brought this up to the contactor prior to pool being filled and were told that it would be fine once pool was filled. We have pictures of interior surface prior to water being added.

Investigator’s Observation: Pool finishes are hand applied and it's impossible to have a perfect finish. The ROC allows for minor variations in these types of finish. However, in this instance, the finish isn't applied properly and there are large variations in the blue with too much white.

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.

Compliance Item: 5 - 24x24 Porcelain Pavers – Out of Scope + Aiding and Abetting. Porcelain pavers around pool installed over existing cool decking, upper patio pavers installed over existing brick. 1⁄2” drainage holes were not drilled 24”, sand was not compacted using a compactor in all areas with pavers including pergola area, no geotextile fabric installed between existing concrete and sand to prevent migration. Weep screep does not have min 2” to home and 4” to soil areas of spacing per city of Scottsdale code. Proper polymeric sand not used to fill spacing, tile is not level in many areas, slopes toward the home risking flooding of interior home, and many improper cuts. Many pavers installed with visible UPC codes showing. We are also unsure of grout used around pool and how pavers were used in place of coping.

Investigator’s Observation: This is a remodel and not part of the original build of the home. The contractor should notify homeowners that making changes like this could alter standards to the home. As for this installation, as long as there in an inch of spacing between the tile and weep screep, the function of the system isn't hindered. There was nothing in the contract stating that weed fabric was to be used. I'm unable to determine if the proper sand was used. However, there was some locations where lippage was an issue. The lippage needs to be corrected.

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.

Compliance Item: 9 - Covered Structure Footers – Out of Scope + Aiding and Abetting. Not permitted nor inspected by City of Scottsdale. Covered structure remains unfinished

Investigator’s Observation: The Contractor needs to make sure all permits are in place and properly inspected by the city.

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.

Compliance Item: 10 - Covered Structure Electrical – Out of Scope + Aiding and Abetting. Structure calls for 2 GFCI Outlets, 4 Can Lights, Fan Beam Electrical. Prior to terminating contract, electrician by the name of Liam installed outlet for TV and what appears to be a switch. Permits were not pulled for this scope, and they leverage breaker for spa that is planned to be installed later. Investigator’s Observation: The Contractor needs to make sure all permits are in place and properly inspected by the city.

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.

Compliance Item: 11 - Fire Pit – Out of Scope + Aiding and Abetting. Original contact stated stucco finish no paint. Agreement made via text message chain (can provide transcript) to change to a smoothed concrete. The finish is unacceptable, chipping, cracking, and when wet shows multiple crack and discoloration. Investigator’s Observation: The fire pit finish needs to be completed per the contract. Any touch-ups should be fixed.

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.

Compliance Item: 16 - Landscape Lighting – Out of Scope + Aiding and Abetting. We do not believe that landscape lighting is installed properly or to manufacturer specifications. The lighting is brighter in some instances than others, not hardwired and just plugging into an outlet and exposed. Lights were not installed per plan as proper sleeves were not installed to the area near sunken firepit and electrical wires have just been left out exposed. Investigator’s Observation: This is another issue that should of been inspected by the city through the permitting and inspection process. The contactor needs to make sure this work is properly permitted and inspected per the city.

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.

Compliance Item: 17 - General Site Grading and Drainage – Out of Scope + Aiding and Abetting. As stated above many areas were not properly graded to support accurate drainage patterns. An existing drain remains in one area of turf, but is at a high point, rendering it useless. Additionally, there was an existing drain at the north side of pool decking (now a planting areas) that we believe connected to the drain in the turf area and it has since been removed causing this area to flood during a recent storm. Lastly the drain installed at the sunken firepit area is below the tile level, and we do not believe that it drains anywhere.

Investigator’s Observation: I was not provided a grading plan that was approved by the city. Grading in this area is a concern because of the various grading laws in this type of an area. This should of been inspected and permitted through the city.

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.

....................................

8. Innovative did not contact Ms. Miller to begin performing work under the Directive until June 23, 2022.

9. Innovative failed to correct the Directive items by the due date.

10. On July 13, 2022, the Registrar issued a Citation alleging that Innovative had violated Ariz. Rev. Stat. section 32-1154(A)(3); Namely A.A.C. R4-9-108(a) and Ariz. Rev. Stat. section 32-1154(A)(22).

11. Innovative filed a timely answer to the Citation.

12. The matter was referred to the Office of Administrative Hearings for an evidentiary hearing.

13. A hearing was held on September 26, 2022.

14. At hearing, Ms. Miller testified on behalf of herself and presented the testimony of her husband, Jeffrey Miller. Innovative presented the testimony of Manuel Martinez and David Covarrubias. Investigator Fultz testified regarding his investigation of the complaint and the issuance of the Directive.

15. Ms. Miller and Mr. Miller testified to the effect that Innovative performed poor work when it remodeled their home. Mr. Covarrubias contended that it was the homeowner’s responsibility to obtain permits.

CONCLUSIONS OF LAW

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

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.

3. The Administrative Law Judge may consider ROC’s administrative record. See A.A.C. R4-9-118.

4. 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).

5. The preponderance of the evidence does not show that Respondent failed to perform the work within professional industry standards in violation of Ariz. Rev. Stat. section 32-1154(A)(3), namely A.A.C. R4-9-108(a).

6. The preponderance of the evidence shows that Respondent failed to

correct the items listed in the Registrar’s Directive without valid justification, which is a violation of Ariz. Rev. Stat. section 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 ROC License: No. 323229 held by Innovative Pool and Spa Systems, Inc. DBA: Innovative Pool Excavation (Innovative), for three days.

It is further recommended that the Registrar require Respondent to pay the sum of $500.00 as a civil penalty pursuant to Ariz. Rev. Stat. section 32-1154(E).

It is further recommended that no future license shall be issued to any entity consisting of persons associated with Respondent, as defined in Ariz. Rev. Stat. section 32-1101(A)(7), 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 forty days from the date of that certification.

Done this day, November 3, 2022

/s/ Velva Moses-Thompson

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors

Jeremy Goad, Esq.

23131 N. Lake Pleasant Pkwy.

Peoria, AZ 85383

[email redacted]

Marilee Clarke, Esq.

Clarke Law Firm, PLC

8141 E. Indian Bend Rd., Suite 105

Scottsdale, AZ 85250

[email redacted]

Jennifer Miller

8432 E. La Senda Dr.

Scottsdale, AZ 85255

[email redacted]

By Miranda Alvarez

Legal Secretary