ALJDEC - Licensing
2023A-08082-CHC-ROC · Registrar of Contractors · 2024-01-10
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
Shaina Weisinger
COMPLAINANT,
v.
Apex Pool Care LLC
DBA: Apex Pools AZ
License No. ROC 341174,
RESPONDENT.
No. 2023A-08082-CHC-ROC
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: December 21, 2023
APPEARANCES: Complainant Shaina Weisinger represented herself. Sean O’Bannon represented Respondent Apex Pool Care LLC.
ADMINISTRATIVE LAW JUDGE: Velva Moses-Thompson
EXHIBITS ADMITTED INTO EVIDENCE: None.
_____________________________________________________________________
FINDINGS OF FACT
1. Respondent Apex Pool Care LLC DBA: Apex Pools AZ (Respondent)
holds License No. ROC 286561 issued by the Registrar of Contractors (Registrar).
2. Respondent’s owner is Sean O’Bannon.
3. On or about July 14, 2020, Respondent agreed to remodel Complainant Shaina Weisinger’s pool for the amount of $12,951.32. Complainant paid Respondent $12,951.32 for the construction project.
4. On or about February 5, 2023, Respondent began construction.
5. On or about February 10, 2023, Respondent stopped work.
6. On or about July 18, 2023, the Registrar received a complaint from Complainant alleging abandonment and poor work in connection with a residential pool remodeling contract.
7. On or about August 30, 2023, Registrar Investigator Steve Klein conducted a job-site inspection.
8. On or about September 11, 2023, the Registrar issued a Directive to Respondent. The Directive provided, in relevant part, 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 28, 2023.
RESTRICTIONS
You may not perform or hire other contractors to perform work that is outside the scope of your license.
If your license is currently suspended for administrative reasons, or is inactive, expired, or cancelled, you may not perform any corrective work nor contract in any manner, which includes hiring other contractors to perform work, until the suspension of your license(s) has been lifted or your license(s) has been reactivated.
DIRECTIVE REQUIREMENTS
You are directed to remedy the following violations by the appropriate means:
Complaint #2 The synthetic grass began sinking in multiple areas of the backyard including along the patio where a new sewage line was placed. Soil was not compacted prior to laying grass by the aerator of the pool
Inspector’s Observation: Verified ground sinking in several areas.
• Respondent shall correct by the appropriate means.
Complaint #3 The grass was not leveled in two areas. -Around the automatic pool filler you can see the concrete lines. -Around the pool filter you can see the concrete lines.
Inspector’s Observation: Verified, Respondent agreed to correct.
• Respondent shall correct by the appropriate means.
Complaint #5 Dirt was not used to create mounds in the front yard as originally discussed and agreed upon.
Inspector’s Observation: Respondent agreed that the mounds was a verbal agreement.
• Respondent shall complete project per original contract agreement, plans, specifications, properly executed change orders and verbal agreements
Complaint #6 Front yard brick flower bed was not completed.
Inspector’s Observation: Verified the brick work was incomplete.
• Respondent shall complete project per original contract agreement, plans, specifications, properly executed change orders and verbal agreements
Complaint # 10 While the irrigation issue was remedied, all items outside of irrigation have been abandoned.
Inspector’s Observation: Verified incomplete work.
• Respondent shall complete project per original contract agreement, plans, specifications, properly executed change orders and verbal agreements
.............................................
9. On October 3, 2023, Inspector Klein conducted a compliance job-site inspection and found that no corrective work had been performed.
10. On or about March 9, 2021, the Registrar issued a Citation against Respondent’s license. Through the Directive, the Registrar alleged that Respondent may have violated Arizona Revised Statutes (A.R.S.) § 32-1154(A)(3) (specifically, A.A.C. section R4-9-108(A); A.R.S. § 32-1154(A)(22). The Citation shows that if the Administrative Law Judge finds the alleged charges are valid, the Registrar may suspend or revoke the license of Respondent.
11. Respondent filed a timely answer to the Citation. In the answer,
Mr. O’Bannon disputed that Respondent agreed to create mounds for Complainant.
12. The matter was referred to the Office of Administrative Hearings for an evidentiary hearing.
13. On November 13, 2023, the Registrar issued a Notice of Hearing setting the matter for hearing on December 21, 2023. The Notice of Hearing shows that the hearing was set to consider the charges made in the Citation and Complaint.
14. A hearing was held on December 21, 2023.
15. At hearing, Ms. Weisenger testified on behalf of herself and presented the testimony of her husband, Dan Weisenger. Mr. O’Bannon testified on behalf of Respondent. Investigator Klein testified consistently with his job-site inspection notes and the Directive.
16. Mr. and Mrs. Weisenger explained that Respondent performed poor work during the pool remodeling project. Mrs. Weisenger explained that the piping work was completed in her yard before the grass installation. Mrs. Weisenger explained that Respondent removed the turf to repair the irrigation system.
17. Mr. O’Bannon explained that Respondent hired subcontractor Southwest Turf Pros (Southwest) to perform the remodeling work, and Southwest abandoned the project. Mr. O’Bannon reached out to Southwest after the Directive was issued but he did not receive a response. Mr. O’Bannon agreed with most of the items substantiated during the inspection. However, Mr. O’Bannon disputed that he entered into a verbal agreement to create mounds. Mr. O’Bannon stated that he told Mr. Weisenger that Respondent could perform the mound work. However, the mounds are not included in the contract nor in a change order.
18. I find the testimony of Mr. O’Bannon regarding the mounds to be credible.
19. Upon review of the evidence, the Administrative Law Judge finds that Respondent failed to appropriately correct Complaint Items 2, 3, 6, and 10.
Mr. O’Bannon has testified that he did not agree to perform mound work and that mounds were not included in the contract or change orders. The Administrative Law Judge finds that Respondent did not agree to create mounds and therefore, Respondent had valid justification for failing to comply with Complaint Item 5.
20. Administrative notice is taken of Respondent’s prior License record as reflected on the Registrar’s public website on January 10, 2024. Such prior License record reflects that Respondent’s License No. ROC 341174 was issued on October 11, 2022 and is suspended for lack of bond. There are no other open complaints against Respondent’s license.
CONCLUSIONS OF LAW
This matter lies within the Registrar’s jurisdiction. See Ariz. Rev. Stat. sections 32-1101 et seq.
Complainant bears the burden of proof to establish Respondent’s statutory violation by a preponderance of the evidence. See Ariz. Rev. Stat. section
41-1092.07(G)(2); A.A.C. R2-19-119(A) and A.A.C. R2-19-119(B)(1); see also Vazanno v. Superior Court, 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)
3. The suspended status of Respondent’s license does not deprive
Complainant of her right to prosecute her complaint against Respondent or prevent the Registrar from determining the merits of Complainant’s complaint.
4. The Administrative Law Judge may consider Registrar’s administrative
record. See A.A.C. § R4-9-118.
5. The preponderance of the evidence shows that Respondent’s work
regarding Complaint Items 2, 3, 6, and 10 failed to meet minimum workmanship standards, which is a violation of Ariz. Rev. Stat. section 32-1154(A)(3), namely A.A.C. R4-9-108(a).
6. The preponderance of the evidence shows that Respondent failed to correct the Complaint Items 2, 3, 6, and 10, without valid justification, which is a violation of Ariz. Rev. Stat. section 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 Apex Pool Care LLC DBA: Apex Pools AZ License No. 341174 for three days.
It is further recommended that the Registrar require Respondent to pay the sum of $500.00 as a civil penalty pursuant to Ariz. Rev. Stat. section 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 Ariz. Rev. Stat. section 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, January 10, 2024.
/s/ Velva Moses-Thompson
Administrative Law Judge
Transmitted by either mail, e-mail, or facsimile to:
Tom Cole
Registrar of Contractors
c/o Legal Department
[email redacted]
Apex Pool Care LLC
DBA: Apex Pools AZ
[email redacted]
Shaina Weisinger
[email redacted]
Steve Klein
[email redacted]
By: OAH Staff