ALJDEC decisions subject to certification as final

2022A-04247-CHC-ROC · Registrar of Contractors · 2022-11-04

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Lindsay Anita Smith and

Daniel Smith,

COMPLAINANTS

The Miller Family Five Corporation

DBA: New Pools AZ

License No. ROC 330934,

RESPONDENT

No. 2022A-04247-CHC-ROC

ADMINISTRATIVE LAW JUDGE

DECISION

HEARING: October 31, 2022

APPEARANCES: Complainants Lindsay and Daniel Smith appeared on their own behalf. Clint Miller appeared on behalf of Respondent The Miller Family Five Corporation, doing business as New Pools AZ. Arizona Registrar of Contractors Investigator Michael Springer appeared as a witness.

ADMINISTRATIVE LAW JUDGE: Sondra J. Vanella

FINDINGS OF FACT

The Miller Family Five Corporation, doing business as New Pools AZ (“Respondent”), is the holder of License No. 330934 issued by the Arizona Registrar of Contractors (“Registrar”). Clint Miller is Respondent’s Qualifying Party and President.

On or about February 11, 2022, Lindsay and Daniel Smith (“Complainants”) contracted with Respondent for Respondent to install a custom in ground spa, among other things, for a total contract price of $38,062.35. As of the hearing date, Complainants paid Respondent $27,562.50.

On or about May 24, 2022, the Registrar received a Complaint against Respondent from Complainants alleging poor work with respect to the project.

The Registrar assigned the Complaint to Investigator Michael Springer. After a July 6, 2022 jobsite inspection, Investigator Springer issued a July 8, 2022 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 Monday July 27th, 2022.

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

Compliance Item: 5 - Sand filter is not level and piping is incorrect. Pad not

installed properly, currently sagging.

Investigator’s Observation: The pad that the filter is sitting on is approx. 1/2" out of level and is washed out underneath. Not stable. Pic

Compliance Item: 6 - Spa construction is inadequate. Not complete.

Including excavation, structure and piping.

Investigator’s Observation: Spa is at pregunite stage. There are wood forms imbedded into the rebar which are not removable. Pipes are not installed straight. Respondent agrees spa is not done correctly and plans to remove and restart. No permits have been pulled for this work, no inspections.

Compliance Item: 7 - Spa missing plumbing, electrical and airflow lines. Bonding

Investigator’s Observation: Spa is not complete. Respondent agrees that it needs to be corrected.

Compliance Item: 8 - Raypak heater has inadequate pad installed. Install

was never completed

Investigator’s Observation: Pad for heater in not level, not supported correctly and is washed out underneath.

Compliance Item: 9 - Solar installation may not be up to code - inadequate

piping, piping is blocking roof drain

Investigator’s Observation: Solar installation needs to be inspected by local jurisdiction under pool permit. No exact code items were pointed out. Manifold for solar should be moved away from scupper opening to allow water flow.

Compliance Item: 10 - lntellicenter was not installed. An older.completely

different model was put in, install not complete

Investigator’s Observation: Respondent states he cannot get parts. Item is not functional.

Compliance Item: 11 - lntellibrite light is not functioning. Incomplete install? Housing of light is now loose.

Investigator’s Observation: Light is not functioning and is hanging out of the housing.

Compliance Item: 12 - Pool cleaning system is now non-functioning

Investigator’s Observation: Pool appears clean but piping at filter is disconnected. Some piping is not glued and is movable by hand. Complainant states pipes are incorrect size but plans were not provided to me to verify.

Compliance Item: 13 - Landscape restoration inadequate

Investigator’s Observation: Landscaping, low voltage lighting, wiring and irrigation have been damaged and are sticking up out of the ground. Rip Rap rock not replaced.

Compliance Item: 16 - Flagstone walkway was broken in many areas, not

fixed after repeated requests

Investigator’s Observation: Flagstone walkway was removed for trenching and not replaced.

Compliance Item: 17 - Underground piping buried without testing or inspections

Investigator’s Observation: No permits pulled. Inspections are required.

ITEMS NOT REQUIRING CORRECTION

The following complaint items require no action by the Respondent:

Compliance Item: 1 - Tile Cleaning was not finished.

Investigator’s Observation: Tile appears to be clean. It was stated that another pool company was helping with the cleaning.

Compliance Item: 2 - After pool was acid washed, it was not refilled for 2

months, infested with green algae and debris.

Investigator’s Observation: Complaint states there is staining on the bottom of the pool. I cannot verify if staining was there prior to new work. Pic 2

Compliance Item: 3 - Pool chemicals not added. Debris not cleaned. Had to hire outside contractor to attempt fixing issue

Investigator’s Observation: At time of JSI, pool appeared to be clean.

Compliance Item: 4 - lntellifo is not wired into panel or operational, not complete nor salt added to pool.

Investigator’s Observation: Respondent states he cannot get parts that are needed to finish installation.

Compliance Item: 14 - Contractor broke irrigation and has not fixed after repeated requests

Investigator’s Observation: Addressed in item 13

Compliance Item: 15 - Landscape lighting was broken and not repaired after repetaed requests

Investigator’s Observation: addressed in item 13.

Compliance Item: 18 - Project was to be exclusively worked on and completed in 6_ weeks total. By the end of March. Left project several times

with no contact.

Investigator’s Observation: This is a general statement which does not include any workmanship items I can verify.

Compliance Item: 19 - Spa does not match design provided and was asked

to redo twice to no avail

Investigator’s Observation: No plans were provided to verify this.

All errors in original.

After the issuance of the Written Directive, Respondent was granted an extension to August 19, 2022, for compliance. Upon the expiration of the time period in which to perform corrective work, Investigator Springer contacted Complainants regarding the state of the corrective work. Complainants sent photographs to Investigator Springer that depicted the work Respondent performed, which was the removal of the spa. However, Respondent performed no further work after the removal of the spa.

Thereafter, Investigator Springer forwarded the matter to the Registrar’s Legal Department. 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), A.R.S. § 32-1154(A)(12), namely A.R.S. § 32-1158, and A.R.S. § 32-1154(A)(22).

Investigator Springer conducted a prehearing inspection on October 28, 2022, and found that the concrete was poured. Investigator Springer testified that the piping for the plumbing was only four to five inches below ground and should have been twelve inches below ground. Investigator Springer testified that the “spa just doesn’t look right” because it “has a smooth finish,” the stairs were uneven, there is a “hole with block used,” it is not symmetrical, and does not look “finished.” Investigator Springer testified that he is unaware whether the local jurisdiction has inspected the spa.

Investigator Springer testified that Complainants were unaware that they were under no obligation to continue to allow Respondent access to the project in order to perform corrective work after the expiration of the Written Directive. Consequently, Complainants allowed Respondent additional time within which to perform corrective work and notwithstanding that additional time, Respondent failed to comply with the Written Directive.

Investigator Springer further testified that he issued a Warning Letter to Respondent due to Respondent’s contract document failing to comply with the minimum elements of a contract, specifically, it lacked Respondent’s license number, an estimated date of completion, and the advisement that a homeowner has the right to file a written complaint with the Registrar. Investigator Springer testified that Respondent has not provided an updated contract to demonstrate compliance.

Mr. Smith testified that he is a plumbing contractor and therefore, he is knowledgeable about the standards for plumbing. Mr. Smith testified that Respondent installed the piping for the plumbing “stacked” when it should have been installed “side by side.” Mr. Smith further testified that the steps for the spa are not code compliant as they vary in height and depth and are a safety issue. Mr. Smith also testified that the benches within the spa are not properly constructed and that Respondent “dry stacked blocks and filled them with sand.”

Mr. Miller testified on behalf of Respondent. Mr. Miller testified that Respondent experienced difficulty in obtaining and maintaining labor and acknowledged that “tasks were not done.” Mr. Miller admitted that “it was poor management on [his] part” and that “his personal life had fallen apart” during the project. Mr. Miller testified that the project has not passed the plumbing inspection “because of the skimmer and pressure testing.” Mr. Miller asserted that he experienced a “payment problem with Complainants” and “could not continue to work without money coming in.” However, the evidence of record established that Complainants paid Respondent approximately $28,000.00 of the contract price.” Mr. Miller further attempted to blame the issues with the spa on Complainants’ dogs digging in the dirt.

Administrative notice is taken of Respondent’s prior License record on November 1, 2022. Such prior License record reflects that Respondent’s License No. 330934 was first issued on October 9, 2020, and was suspended effective November 1, 2022, for non-renewal. Such prior License record also reflects that there is only the instant open complaint, one resolved/settled complaint, and no discipline against Respondent’s license.

CONCLUSIONS OF LAW

This matter lies within the Registrar’s jurisdiction.

Complainants bear the burden of proof to establish Respondent’s statutory violations by a preponderance of the evidence. “A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.”

In this case, Investigator Springer found that Respondent’s work was not in conformity with the Registrar’s standards. Investigator Springer determined the existence of workmanship issues concerning the work that was performed by Respondent. Therefore, Complainants established that Respondent did not complete the project in a professional and 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’s contract documents failed to contain the minimum elements required for contracts. Therefore, Complainants established that Respondent failed to comply with the Registrar’s statute in violation of A.R.S. § 32-1154(A)(12).

The evidence established that Respondent did not complete the required corrective work following the Written Directive being issued, notwithstanding the extension that was granted and the fact that Complainants continued to allow Respondent to work past the extended deadline. The Administrative Law Judge concludes based on the evidence of record that valid justification did not exist for Respondent’s failure to comply with the Written Directive. Therefore, Complainants 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. 330934 for a period of seven (7) 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 (30) 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)(7), unless Respondent tenders payment of any outstanding prior civil penalty.

It is further recommended that, on or before thirty (30) days after the effective date of the final order, Respondent shall provide a sample contract to the Registrar to demonstrate that it has amended its contracts to include the nine (9) terms required by A.R.S. § 32-1158(A). If Respondent fails to establish to the Registrar that it has brought its contracts into compliance with A.R.S. § 32-1158(A) within thirty (30) days, its contractor’s license shall be suspended until it demonstrates that it has done so.

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 (40) days from the date of that certification.

-54864001

001

-137160-45720000Done this day, November 4, 2022.

/s/ Sondra J. Vanella

Administrative Law Judge

Transmitted electronically or by mail to:

Jeffrey Fleetham

Registrar of Contractors

c/o Legal Department

1700 W. Washington Street, Suite 105

Phoenix, AZ 85007

[email redacted]

Lindsay Anita Smith

8994 E. Fernbush Court

Vail, AZ 85641

[email redacted]

Mike Springer

[email redacted]

The Miller Family Five Corporation

DBA, New Pools AZ

9498 E. Adriana Way

Vail, AZ 85641

[email redacted]

By Miranda Alvarez

Legal Secretary

-54864001

001

-137160-45720000