ALJDEC - Licensing

2022A-09056-CHC-ROC · Registrar of Contractors · 2023-04-19

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Lenny Algerio and

Maureen Algerio,

COMPLAINANTS,

v.

Bill's Pool Service, Inc.

DBA: Money's Worth Pool Construction

License No. ROC 127739,

RESPONDENT.

No. 2022A-09056-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: April 10, 2023

APPEARANCES: Complainants Lenny and Maureen Algerio appeared on their own behalf. Bill Griffin appeared on behalf of Respondent Bill’s Pool Service, Inc., doing business as Money’s Worth Pool Construction. Arizona Registrar of Contractors Investigator Michael Wiskow appeared as a witness.

ADMINISTRATIVE LAW JUDGE: Sondra J. Vanella

FINDINGS OF FACT

Bill’s Pool Service, Inc., doing business as Money’s Worth Pool Construction (“Respondent”), is the holder of License No. 127739 issued by the Arizona Registrar of Contractors (“Registrar”). William Griffin, Jr. is Respondent’s Qualifying Party and an Officer of Respondent.

On or about June 28, 2022, Lenny and Maureen Algerio (“Complainants”) contracted with Respondent for the installation of a pool on Complainants’ property. The contract price was $72,139.22 and Complainants have paid Respondent $48,054.88.

On or about October 6, 2022, the Registrar received a Complaint against Respondent from Complainants alleging abandonment with respect to the project.

The Registrar assigned the Complaint to Investigator Michael Wiskow. After a November 4, 2022 Jobsite Inspection, at which both parties were present, Investigator Wiskow issued a Written Directive to Respondent on November 7, 2022, 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 December 2, 2022.

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

Compliance Item: 1 - Our pool is not finished.

He has not paid Leisure Pools ($27,000) for our fiberglass pool.;

We have given him $48,000 and all he has done is dig a hole and put some

sand at the base.;

He leis on a continues basis, he said they canceled the pool delivery because there were no pilot cars to follow the truck. My wife found out from Leisure pools that, that was a lie. ;

He said he paid for the pool, another lie.;

He said if I give him another $10,000 he will pay for my pool and have it delivered.;

Investigator’s Observation: At the time of the jobsite inspection, the prefabricated pool was in place however it was not properly centered. There

was no backfill and the pvc plumbing was exposed. The pool equipment was present but not operational. The pool should be properly centered. The pool project should be finished per plan and contract agreement.

The contractor should finish contract per plan and contract by appropriate

means.

Compliance Item: 5 - He still has not obtained a permit for our pool.;

Investigator’s Observation: There is currently no permit for the project.

There should be a permit for the project and all the required inspections should be performed and signed off by Maricopa County.

Contractor should obtain and fulfill the obligations of the Maricopa County

Pool permit by appropriate means.

ITEMS NOT REQUIRING CORRECTION

The following complaint items require no action by the Respondent:

Compliance Item: 2 - when we had a delivery date for the pool he said he

would not be able to finish because there is a sand shortage. (Yes you read it right a sand shortage);

When I told him I have someone that can get sand, he told me he needs 40 tons so I ordered it and had it delivered and he tells my wife he never told me to order sand. However he was on speaker phone when he tool me to order it and my wife heard the conversation. so she called him out on another lie. so I spent money out of my own pocket on top of the $48,000 just because he tells leis abut everything.;

Investigator’s Observation: The ROC does not have jurisdiction over financial issues.

Compliance Item: 3 - His guys hit my wall with a truck, I had to have that

fixed $400. ( he did say I should take that off the bill);

Investigator’s Observation: There was no mention of a wall that needed

to be repaired at the jobsite inspection.

Compliance Item: 4 - He said he is going to fill my pool with the garden hose (probable 30,000 gallons) when I told him from the beginning I am with a private water company and that can not be done. He said his water guys don't want to come all the way out to Wittmann, so I told him the same guy that brought the sand here also has water trucks. I have to do his job for him.

Investigator’s Observation: The ROC would have no jurisdiction concerning how the pool is filled.

All errors in original.

Investigator Wiskow extended the period for compliance with the Written Directive twice. The first extension was until January 3, 2023, and the second extension was until January 24, 2023.

Investigator Wiskow conducted a Compliance Inspection on January 31, 2023. Investigator Wiskow’s Compliance Jobsite General Notes state the following:

Compliance Item #1: At the time of the jobsite inspection, the prefabricated pool was in place however it was not properly centered. There was no backfill and the pvc plumbing was exposed. The pool equipment was present but not operational. The pool should be properly centered. The pool

project should be finished per plan and contract agreement.

The contractor should finish contract per plan and contract by appropriate

means.

Investigator’s Observation: No work has been done. Pool is still not centered and not finished. Additionally, it has been revealed that the pool is 3 inches out of level per laser measurements.

-Incomplete

Compliance Item #5: There is currently no permit for the project.

There should be a permit for the project and all the required inspections should be performed and signed off by Maricopa County.

Contractor should obtain and fulfill the obligations of the Maricopa County Pool permit by appropriate means.

Investigator’s Observation: The permit is still not available. There was discussion between the parties concerning a retaining wall causing permit delay. Per documents supplied by the respondent, the permit is still under building plan review AND zoning review. The directive period was extended twice to give the respondent additional time to procure building permit.

-Incomplete

All errors in original.

On February 1, 2023, Investigator Wiskow 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) and A.A.C. R4-9-108(b), and A.R.S. § 32-1154(A)(22).

Investigator Wiskow testified consistently with the findings contained in his Jobsite Inspection Notes, the Written Directive, and the Compliance Jobsite General Notes.

Ms. Algerio testified that the permit was not issued until March 15, 2023, and until then, there was no permit for the pool.

Ms. Algerio further testified that the crane operator who placed the prefabricated pool asked Mr. Griffin at that time if he wanted him to center the pool and Mr. Griffin responded that he would move it with his own machinery. Ms. Algerio submitted into evidence a video of the conversation.

Ms. Algerio testified that she informed Respondent that she wanted the pool level with the patio and that it what the parties had agreed upon. Ms. Algerio testified that the pool plans specify that the pool is level with the patio. However, Mr. Griffin thereafter told her that the pool had to be higher than the patio and that it would need to be raised by a few inches. Ms. Algerio testified that Respondent raised the pool and proceeded to partially backfill which is contrary to manufacturer specifications. Those specifications indicate in pertinent part: “The pool will be simultaneously filling with water while it is backfilled to provide equal pressure and stability on both sides of the fiberglass walls.” Ms. Algerio testified that because Respondent did not follow manufacturer specifications, the “pool bowed” because Respondent raised the pool, creating a void underneath it.

Mr. Griffin testified that he set the pool “per code with a crane” and that he prefers to make adjustments with smaller equipment. Mr. Griffin further testified that code requires a pool to slope away from a house 1⁄4 inch per foot. Mr. Griffin testified that the pool is properly 31⁄2 inches higher than the patio. Mr. Griffin referenced an International Building Code that is actually a California Building Code. Mr. Griffin did not provide a code governing pool construction in the State of Arizona, however, continually asserted that the pool installation is per code.

Mr. Griffin asserted that although he agrees that the pool should have been backfilled with water per the manufacturer instructions, Complainants “refused to bring in water” for the backfilling, and therefore, the walls collapsed and the pool was not completed. However, Mr. Griffin asserted that the pool bottom “is solid.”

Tyson Crockett, Respondent’s witness who worked on the pool installation, testified that he asked Complainants for water on March 4, 2022, however, thereafter told them to cancel the water supply because the pool was not ready. Mr. Crockett testified that he used dirt and sand to level the pool.

Administrative notice is taken of Respondent’s prior License record on April 17, 2023. Such prior License record reflects that Respondent’s License No. 127739 was first issued on November 17, 1997, and is active. Such prior License record also reflects that there is only the instant open Complaint, five resolved/settled complaints, 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.”

The evidence established that Respondent’s work was not in conformity with the Registrar’s standards and that Respondent failed to obtain the proper permit for the project. Therefore, Complainants established that Respondent did not complete the project in a workmanlike manner and failed to perform its work in accordance with applicable building codes, in violation of A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108(A) and (B).

The evidence established that Respondent did not complete the corrective work following the Written Directive being issued, notwithstanding the extensions of the time period in which to comply, and that valid justification for such failure did not exist. 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. 127739 for a period of four (4) 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.

Pursuant to A.R.S. § 41-1092.08(I), the licensee may accept the Administrative Law Judge Decision by advising the Office of Administrative Hearings in writing not more than ten (10) days after receiving the decision. If the licensee accepts the Administrative Law Judge Decision, the decision shall be certified as the final decision by the Office of Administrative Hearings.

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.

Done this day, April 19, 2023.

/s/ Sondra J. Vanella

Administrative Law Judge

Transmitted by either mail, e-mail, or facsimile to:

Martín Quezada, Director

Registrar of Contractors

[email redacted]

Mike Wiskow

[email redacted]

Lenny and Maureen Algerio

[email redacted]

Bill's Pool Service, Inc.

dba Money Worth Pool Construction

[email redacted]

By: OAH Staff