ALJDEC decisions subject to certification as final

2022A-06182-CHC-ROC · Registrar of Contractors · 2022-12-27

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Neil Owen Brillhart,

COMPLAINANT

Blue Shark Pools, LLC

License No. ROC 327942,

RESPONDENT

No. 2022A-06182-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: December 9, 2022

APPEARANCES: Complainant Neil Owen Brillhart appeared via Google Meet. Eddie Perez appeared via Google Meet on behalf of Respondent Blue Shark Pools LLC.

ADMINISTRATIVE LAW JUDGE: Adam D. Stone

_____________________________________________________________________

FINDINGS OF FACT

Blue Shark Pools LLC (Respondent) is the holder of License No. 327942 issued by the Arizona Registrar of Contractors (Registrar).

On or about March 23, 2022, Complainant agreed to have Respondent install PebbleTec around his pool. The total cost was to be $8,900.00.

On or about July 26, 2022, the Registrar received a Complaint containing three items against Respondent from Complainant alleging poor work with respect to project.

The Registrar assigned the complaint to Investigator John Peru. The jobsite inspection was performed on August 23, 2022.

On August 29, 2022, Investigator Peru 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 13, 2022.

. . .

DIRECTIVE REQUIREMENTS

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

Compliance Item: 1 - "Leak at return valve per Pin Point Detection. "

Investigator’s Observation: Verified.

At the time of this Inspection, both parties agree to accept the report submitted by "Pin Point Detection" for the source of the leak. During this Inspection, the general area of the leak is wet and shows signs of a leak present. (Reference Pic# 3, 4).

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: 2 - "Previous Repair done to one of the Return Valves, was poorly finished with the Pebble Tech."

Investigator’s Observation: Verified.

At the time of this Inspection, the repair previously completed on one of the Return Valves is poorly done. The Pebble Tech finish around the valve concaves inwards and does not have a uniform appearance as the other valves have. (Reference Pic# 5)

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.

(All errors contained in the original).

On September 20, 2022, Investigator Peru conducted a Compliance Jobsite Inspection. In his notes regarding the same, Investigator Peru found the following:

Compliance Findings:

Compliance Item: 1 - "Leak at return valve per Pin Point Detection."

Investigator’s Observation: Verified.

Governing Rule: A.R.S. § 32-1154(A)(3) - R4-9-108(a) workmanship

Note:

As a result of following the Written Directive per Respondent, there is still evidence of a leak in the same area. Additionally, the Respondent made repairs on (3) of the returns, and the Pebble Tech is not flat and consistent with the other returns. The (3) returns are bubbled out from the Spa’s Interior side and do not meet the minimum workmanship standards at this time.

(All errors contained in the original).

On September 27, 2022, 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).

On or about October 7, 2022, Respondent timely e-mailed an Answer to the Registrar.

On or about November 7, 2022, a Notice of Hearing was issued setting a hearing on December 9, 2022 at the Office of Administrative Hearings, an independent state agency.

At hearing, Investigator Peru testified as to the Registrar’s involvement and the above timeline.

Investigator Peru testified that at the jobsite inspection, the parties agreed to reference the Pin Point Detection report and make the necessary repairs.

In addition, Investigator Peru testified that at the Compliance Jobsite Inspection he noticed while Mr. Perez made repairs to three valves the surface on the repairs seemed raised like a pimple. Investigator Peru testified that the three repairs were not flat, consistent or uniform with the other valves.

Complainant testified too that the replaced valves looked like a “pimple ready to pop.”

Complainant testified further that while the valves were properly repaired west side of the spa wall, the valves on the north wall were still leaking.

Complainant testified that it was his belief that Mr. Perez did not prepare the fittings correctly which caused the leak.

In addition, Complainant opined that the application of the pebble in the spa was simply done incorrectly as there was only one person installing the same.

Mr. Perez testified that he had been trying to resolve the leaking issue and was convinced that there was no way the valves could still be leaking because he used enough glue and completed the work properly.

Mr. Perez also testified that the people was never going to be perfect because it is done by hand.

Administrative notice is taken of Respondent’s prior License record on December 27, 2022. Such prior License record reflects that Respondent’s License No. 327942 was first issued on March 2, 2020, and reflects that there was 1 open complaint namely the present complaint.

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 preponderance of the evidence established that there were leaks at the return valves, and the previous repair work done previously was not uniform with the other valves. 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).

As to the issue regarding the corrective work, the evidence 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). While it was clear from Investigator Peru’s testimony that Mr. Perez made attempts to repair the valves, the finished product was not flat, consistent, nor uniform with the other valve located throughout the project.

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. 327942 for a period of three days.

It is further recommended that the Registrar require Respondent to pay the sum of $200.00 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)(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 30 days from the date of that certification.

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-137160-45720000Done this day, December 27, 2022.

/s/ Adam D. Stone

Administrative Law Judge

Transmitted electronically or by mail to:

Jeffrey Fleetham, Director

Registrar of Contractors

Neil Owen Brillhart

17815 W Dreyfus St

Surprise, AZ 85388

[email redacted]

Blue Shark Pools, LLC

10027 W Preston Ln

Tolleson, AZ 85353

[email redacted]

By Miranda Alvarez

Legal Secretary

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-137160-45720000