ALJDEC - Licensing
2023A-02825-CHC-ROC · Registrar of Contractors · 2024-01-30
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
Keith Kanipe ,
COMPLAINANT
v.
Pleasure Spas Inc
DBA: Pleasure Pools
License No. ROC 166025,
RESPONDENT
No. 2023A-02825-CHC-ROC
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: January 11, 2024, 1:00 P.M.
APPEARANCES: Complainant Keith Kanipe appeared on his own behalf; Owen Brown appeared on behalf of Respondent
ADMINISTRATIVE LAW JUDGE: Roger A. Geddes
EXHIBITS ADMITTED INTO EVIDENCE: None submitted.
_____________________________________________________________________
FINDINGS OF FACT
Background and Procedure
1. Pleasure Spas, Inc., dba: Pleasure Pools (“Respondent”), is the holder of License Number 166025 issued by the Registrar of Contractors (“Registrar”).
2. On or about March 9, 2023, Keith Kanipe (Complainant) filed a Complaint against Respondent with the Registrar alleging poor work by Respondent in connection with a swimming pool installation at a residence in Tucson, Arizona (“project”).
3. The Registrar performed an inspection of the project on March 21, 2023. Thereafter, the Registrar issued a Written Directive, dated March 31, 2023 (“Directive”), requiring Respondent to remedy the following violations by April 21, 2023, by appropriate means (“Directive deadline”):
Compliance Item: 1 - "Pool Shell/Shock Crete is cracked in several areas
, Shell is compromised and severely leaking. ;"
Investigator’s Observation: Verified. Upon inspection at this JSI I
observed for: -unsuccessfully attempted crack repairs performed by Backyard Pool Plastering Service & Repair LLC when the pool was initially completed have resulted in the pool structure along with the interior lining not forming a single waterproof unit.
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 - "Pebble Tek is Cracked in several areas and leaks
water from shell."
Investigator’s Observation: Verified. Upon inspection at this JSI I
observed for: -cracking in pebble tec
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: 3 - "Pebble tek poorly installed and has multiple missing
areas exposing the shock Crete, There are bubbles and high spots."
Investigator’s Observation: Verified. Upon inspection at this JSI I
observed for: -area of chipped out pebble tec
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: 4 - "Patches that were original attempted are not compete
are very discolored and very noticeable."
Investigator’s Observation: Verified. Upon inspection at this JSI I
observed for: -the pebble tec patches/repairs added to the unsuccessfully attempted crack repairs performed by Backyard Pool Plastering Service & Repair LLC when the pool was initially completed do not closely match the surrounding pebble tec and are poorly finished.
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.
4. The Registrar performed a Compliance Inspection on May 31, 2023, and made the following findings:
Compliance Item: 1 - "Pool Shell/Shock Crete is cracked in several areas,
Shell is compromised and severely leaking. ;"
Investigator’s Observation: Work was performed for this item but an independent 3rd party engineering inspection has found that this work does not meet standards.
Compliance Item: 2 - "Pebble Tek is Cracked in several areas and leaks
water from shell."
Investigator’s Observation: Work not completed for this item.
Compliance Item: 3 - "Pebble tek poorly installed and has multiple missing
areas exposing the shock Crete, There are bubbles and high spots."
Investigator’s Observation: Work not completed for this item.
Compliance Item: 4 - "Patches that were original attempted are not compete
are very discolored and very noticeable."
Investigator’s Observation: Work not completed for this item.
5. The Registrar then issued a Citation to Respondent, dated July 24, 2023, for the alleged violation of the following:
a. A.R.S. § 32-1154(A)(3) (violation of Arizona Administrative Code Rule 4-9-108(a) for failure to perform work in a professional and workmanlike manner);
b. A.R.S. § 32-1154(A)(22) (failure to perform corrective action without valid justification).
6. The Registrar referred the matter to the Office of Administrative Hearings, an independent state agency, for an evidentiary hearing that was continued to January 11, 2024, at 1:00 P.M. At the January 11, 2024, hearing, Complainant Keith Kanape testified on his own behalf; Owen Brown, majority owner, appeared on behalf of Respondent. Mike Springer, the Registrar Investigator (“Investigator”), testified on behalf of the Registrar. Neither party submitted exhibits.
7. The Investigator testified on behalf of the Registrar consistently with the findings contained in the Directive and the job inspection notes. He stated that he was appearing because Arlo Houston, the Investigator on the project, was not available.
8. Complainant Keith Kanipe testified that the swimming pool leaked within a month of the installation and has not been repaired. He stated it will not hold water and has since been drained.
9. Owen Brown testified on behalf of Respondent, as herein relevant, that he purchased a majority interest in Respondent after the pool was installed and that he was not involved with the installation of the pool. He stated Backyard Pools, a subcontractor on the project, came out to perform repairs but was unsuccessful.
10. Administrative notice is taken of the Registrar’s public website which reflects Respondent was first issued the subject license on July 30, 2001. The site also reflects two Open cases, no Disciplined cases, and two Resolved/Settled cases.
CONCLUSIONS OF LAW
1. The Registrar has jurisdiction over this matter, pursuant to A.R.S. § 32-1101, et seq., which authorizes the Registrar to impose disciplinary sanctions against licenses for violations of A.R.S. § 32-1154.
2. 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 preponderance of the evidence. See Arizona Administrative Code Rule 2-19-119.
3. To warrant sanctions by the Registrar, Complainant must demonstrate by a preponderance of the evidence that Respondent violated the statutory section cited. Proof by a “preponderance” means that “the evidence is sufficient to persuade the finder of fact that the proposition is more likely true than not.” In re: Arnold and Baker Farms, 177 B. R. 648 (9th Cir. BAP (Ariz.) 1994). See also Culpepper v. State of Arizona, 187 Ariz. 431, 930 P.2d 508 (App. 1996). It is “evidence which is of greater weight or more convincing than the evidence which is offered in opposition to it; that is, evidence which as a whole shows that the fact sought to be proved is more probable than not.” BLACK’S LAW DICTIONARY 1182 (Rev. 6th ed. 1990).
4. A.R.S. § 32-1154(A) includes in pertinent part among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, the following that were included in the Citation:
3. Violation of any rule adopted by the registrar.
...
22. Failure to take appropriate corrective action to comply with his chapter or with rules adopted pursuant to this chapter without valid justification within a reasonable period of time after receiving a written directive from the registrar.....
5. With regard to the “violation of any rule adopted by the registrar” under A.R.S. § 32-1154(A)(3) referenced in the Citation, the rule allegedly violated in this case is Arizona Administrative Code Rule 4-9-108(A) which requires that “[a] contractor shall perform all work in a professional and workmanlike manner.”
6. A.R.S. § 32-1154(A)(3). Complainant has presented sufficient evidence to establish that Respondent failed to perform work in a professional and workmanlike manner in violation of Arizona Administrative Code Rule 4-9-108(a). Respondent conceded that the Directive items existed and had not been remedied.
7. A.R.S. § 32-1154(A)(22). Complainant has presented sufficient evidence to establish that Respondent failed to perform corrective action without a valid justification. There was no evidence presented to support a valid justification for not completing the corrective work.
8. Accordingly, the Tribunal finds that Complainant has established that Respondent’s license should be disciplined for a violation of § 32-1154(A)(3) and A.R.S. § 32-1154(A)(22).
RECOMMENDED ORDER
Based on the foregoing, it is recommended that on the effective date of this Order, Pleasure Spas, Inc.’s, License Number 166025 is suspended for two (2) days.
IT IS FURTHER RECOMMENDED that pursuant to A.R.S. § 32-1154(E), Respondent must pay to the Registrar a civil penalty of $250.00 in certified funds on or before 30 days from the effective date of this Order.
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 the 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, January 30, 2024.
/s/ Roger Geddes
Administrative Law Judge
Transmitted electronically to:
Tom Cole, Director
Registrar of Contractors
Pleasure Spas, Inc.
DBA: Pleasure Pools
2004 E. Irvington Rd. #186
Tucson, AZ 85714
[email redacted]
Keith Kanipe
11270 E. Vail Vista Ct.
Tucson, AZ 85747
[email redacted]
By: OAH Staff