ALJDEC - Licensing
2023A-06956-CHC-ROC-RH · Registrar of Contractors · 2024-05-08
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
June Oroz,
COMPLAINANT
v.
Next Generation Pools LLC
License No. ROC 330649,
RESPONDENT
No. 2023A-06956-CHC-ROC-RH
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: April 5, 2024
APPEARANCES: Complainant June Oroz appeared on her own behalf. Joseph Castro, Owner and Qualifying Party, appeared on behalf of Respondent Next Generation Pools LLC.
ADMINISTRATIVE LAW JUDGE: Tammy L. Eigenheer
EXHIBITS ADMITTED INTO EVIDENCE: Administrative Notice was taken of the Hearing Packet submitted by the Registrar of Contractors.
_____________________________________________________________________
FINDINGS OF FACT
Next Generation Pools LLC (Respondent) is the holder of License No. 330649 issued by the Arizona Registrar of Contractors (Registrar).
On or about January 19, 2021, June Oroz (Complainant) entered into a contract with Respondent for the construction of a swimming pool and deck. Neither party submitted a signed contract.
On or about July 6, 2023, the Registrar received a Complaint against Respondent from Complainant alleging poor work with respect to the project.
The Registrar assigned the complaint to Investigator Gregory Johndrow.
On or about August 18, 2023, Investigator Johndrow conducted a jobsite inspection.
On or about August 23, 2034, Investigator Johndrow 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 11, 2023.
. . . .
DIRECTIVE REQUIREMENTS
You are directed to remedy the following violations by the appropriate means:
Complaint Item 2: “Broken Glass painted over on Cool Deck”
Investigator’s Observations: Verified. I observed pieces of broken glass embedded in the paint used on the cool deck in the N.W. corner.
. . . .
Complaint Item 3: “Cool Deck Cracking Again”
Investigator’s Observations: Verified. I observed multiple locations where cracks have developed in the cool deck. The complainant states these are locations where previous cracks were repaired.
. . . .
Complaint Item 4: “Pool has a major leak we add water every other day.”
Investigator’s Observations: Verified. A leak has been identified inside the auto fill location, the respondent shall perform the necessary corrections in this location and resolve all other leaks within the pool.
On or about August 29, 2023, Investigator Johndrow conducted an addendum jobsite inspection to review an additional item added by Complainant.
On or about August 31, 2023, Investigator Johndrow issued an amended written directive that set a new deadline for compliance of September 18, 2023, and included the following:
Addendum Complaint Item 1: “I through we put the spa jets in. Can you please add to complaint...they don’t work.”
Investigator’s Observations: Verified. At the time of this inspection, after the complainant had activated the jets for the spa, I observed the jets do not work.
On or about September 21, 2023, Investigator Johndrow contacted Complainant who stated that the corrective work was not complete, but agreed to an extension of the deadline.
On or about September 21, 2023, Investigator Johndrow issued another amended written directive that set a new deadline for compliance of October 6, 2023.
On or about October 17, 2023, Investigator Johndrow was notified that the corrective work had been performed.
On or about October 18, 2023, Investigator Johndrow conducted a compliance jobsite inspection. At that inspection, Investigator Johndrow observed that all complaint items were corrected except Item #4 regarding the pool leak.
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 Johndrow testified as to his involvement in this matter.
Complainant testified that the pool was still leaking. Complainant indicated that the light had bubbles coming out of it. Complainant stated that the cracks on the decking were returning and had been corrected multiple times previously. Complainant testified as to other issues with the swimming pool that were not addressed in the written directive.
Mr. Castro admitted that there were existing issues with the wiring, but he was willing to address that. Mr. Castro stated that he hired a leak detection company that discovered a small leak that was corrected. Mr. Castro indicated that a second leak detection company found no loss of water beyond evaporation. Mr. Castro read from a report to that effect, but the report was not submitted to the Registrar or into evidence at the hearing. Mr. Castro testified that the parties signed a written contract, but he did not submit a copy of the contract to the Registrar or into evidence at the hearing.
Administrative notice is taken of Respondent’s prior License record on April 29, 2024. Such prior License record reflects that Respondent’s License No. 330649 was first issued on September 15, 2020, and is active. Such prior License record also reflects that there were no other open or prior complaints against Respondent’s license.
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 evidence established that Respondent’s work was not in conformity with the Registrar’s standards. 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).
The evidence established that Respondent’s contract failed to include the required elements of a contract set forth in A.R.S. § 32-1158(A). Therefore, the Registrar 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 corrective work following the Directive being issued. Therefore, Complainant 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. 330649 for a period of one day.
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 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 days, its contractor’s license shall be suspended until it demonstrates that it has done so.
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 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 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, May 8, 2024.
/s/ Tammy L. Eigenheer
Administrative Law Judge
Transmitted by either mail, e-mail, or facsimile to:
Tom Cole, Director
Registrar of Contractors
Next Generation Pools LLC
[email redacted]
Gregory Johndrow
[email redacted]
June Oroz
[email redacted]
By: OAH Staff