ALJDEC - Licensing

2023A-05708-CHC-ROC · Registrar of Contractors · 2023-12-11

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Mark and Barbara Tabaldi,

COMPLAINANTS,

v.

Lush Pools And Landscaping, LLC

License No. ROC 330626,

RESPONDENT.

No. 2023A-05708-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: December 5, 2023

APPEARANCES: Complainants Mark and Barbara Tabaldi appeared on their own behalf. Larry Job appeared on behalf of Respondent Lush Pools And Landscaping, LLC. Arizona Registrar of Contractors Investigator Todd Anderson appeared as a witness.

ADMINISTRATIVE LAW JUDGE: Sondra J. Vanella

EXHIBITS ADMITTED INTO EVIDENCE: No Exhibits were offered. Administrative notice of the Agency Record was taken.

FINDINGS OF FACT

Lush Pools And Landscaping, LLC (“Respondent”) is the holder of License Number 330626 issued by the Arizona Registrar of Contractors (“Registrar”). Larry Job is Respondent’s Qualifying Party and Manager.

In or about April 2021, Mark and Barbara Tabaldi (“Complainants”) contracted with Respondent for the construction of a pool. The contract specified “PEBBLE TEC BRAND/PEBBLE SHEEN PACKAGE.” The contract price was $47,308.11.

On or about May 17, 2023, the Registrar received a Complaint against Respondent from Complainants alleging poor work with respect to the project.

The Registrar assigned the Complaint to Investigator Todd Anderson. After a June 14, 2023 Jobsite Inspection, Investigator Anderson issued a Written Directive to Respondent dated June 15, 2023, 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 July 3rd, 2023.

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

Compliance Item: 1 - Wrong pool finish installed, and the pool finish installed is now defective.

Investigator’s Observation: Verified. The pool finish installed is not a “Pebble Tec Brand / Pebble Sheen Package” as was stated on the contract dated 4/13/23. *Contractor should correct by appropriate means.

On July 19, 2023, after the expiration of the time period in which to perform corrective work, Investigator Anderson conducted a Compliance Inspection. Investigator Anderson’s Compliance Jobsite General Notes state the following:

Compliance Jobsite General Notes:

See photos taken on July 19th, 2023 at 9:00AM. Contractor did not comply with Written Directive by taking any corrective action.

Compliance Findings:

Compliance Item: 1 - Wrong pool finish installed, and the pool finish installed is now defective.

Investigator’s Observation: Verified. The pool finish installed is not a pebble product as was stated on the contract dated 4/13/23

Thereafter, Investigator Anderson 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)(2)(a), A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108(a), and A.R.S. § 32-1154(A)(22).

Investigator Anderson testified consistently with his findings contained in the Written Directive and Compliance Jobsite General Notes. Investigator Anderson testified that Respondent did not install a pebble surface pursuant to the terms of the parties’ contract, but rather, installed plaster with quartz added. Further, Investigator Anderson testified that Respondent had not performed any corrective work as required by the Written Directive.

The filed Complaint also stated that “the pool finish installed is now defective.” Investigator Anderson testified that it was an “oversight on his part” that he did not address this item of Complaint at the Jobsite Inspection or in the Written Directive. Investigator Anderson concentrated on the fact that the incorrect pool finish was installed. Investigator Anderson testified that he did notice footprints in the pool’s finish during his Jobsite Inspection.

Mr. Tabaldi testified that Respondent installed the wrong product for the pool finish and that the product that was installed, is defective. Mr. Tabaldi testified that he purchased a Pebble Sheen finish, and instead, Respondent installed “Quartzscape.” Mr. Tabaldi explained that these are two different products that require two different applications.

Mr. Tabaldi explained that the incorrectly installed pool finish is defective, in that within a few months of completion of the pool, the blue plaster finish was turning white and boot prints were visible. Mr. Tabaldi contacted Respondent multiple times to ask Respondent to address the issues.

Mr. Tabaldi testified that Complainants have paid 95% of the contract price.

Mr. Job testified that Pebble Sheen in Tahoe Blue was selected and was listed in the parties’ contract. Mr. Job explained that two companies supply Pebble Sheen and that a “crossover product” was installed in Complainants’ pool. Mr. Job further explained that Respondent contracted with an installer to install Universal Cement Lakeside, and that the installer believes that the finish needs to be acid washed. Mr. Job testified that the pool finish also needs to be power washed in order to expose the pebbles/aggregate, and that the finish is not defective. Mr. Job acknowledged the multiple boots marks in the pool finish, and testified that the subcontractor will not respond to his requests to address the issue.

Mr. Job testified that he has filed a claim with Respondent’s insurance company and is waiting for verification as to whether the correct product was installed. Mr. Job testified that if his insurance company determines that the wrong product was installed, Respondent will replace it. Mr. Job further testified that he takes responsibility for not addressing the matter sooner, and that he involved his insurance company because there is “no easy fix” and it “will be resolved at the direction of the insurance company.”

Administrative notice is taken of Respondent’s prior License record on December 11, 2023. Such prior License record reflects that Respondent’s License Number 330626 was first issued on September 14, 2020, and is active. Such prior License record also reflects that there is only the instant open complaint, three 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 credible and probative evidence of record established that Respondent installed the incorrect pool finish that was contrary to the terms of the parties’ contract. Therefore, Complainants established that Respondent departed from or disregarded plans or specifications in a material respect without Complainants’ consent, resulting in prejudice to Complainants, thereby violating A.R.S. § 32-1154(A)(2)(a).

In this case, Investigator Anderson found that Respondent’s work was not in conformity with the Registrar’s standards. Investigator Anderson determined the existence of workmanship deficiencies with the work that was performed by Respondent, including the installation of the incorrect pool finish and the existence of boot marks in the pool finish. Mr. Tabaldi’s credible testimony established that the pool finish was fading to white and Mr. Job also acknowledged that the existing pool finish was not installed correctly, requiring power and/or acid washing to reveal the aggregate. 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, including Mr. Job’s admission, established that Respondent did not complete the required corrective work following the Written Directive being issued. 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 Number 330626 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.

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, December 11, 2023.

/s/ Sondra J. Vanella

Administrative Law Judge

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

Tom Cole, Director

Registrar of Contractors

c/o Legal Department

[email redacted]

Mark and Barbara Tabaldi

[email redacted]

[email redacted]

Lush Pools and Landscaping, LLC

[email redacted]

Todd Anderson

[email redacted]

By: OAH Staff