ALJDEC decisions subject to certification as final

2023A-11844-CHC-ROC · Registrar of Contractors · 2024-04-18

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Tad Johnson ,

COMPLAINANT

Pleasure Spas Inc

DBA: Pleasure Pools

License No. ROC 166025,

License No. ROC 201430,

RESPONDENT

No. 2023A-11844-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: March 29, 2024

APPEARANCES: Tad Johnson appeared on his own behalf. Owen Brown, qualifying party, appeared on behalf of Respondent.

ADMINISTRATIVE LAW JUDGE: Amy M. Haley

EXHIBITS ADMITTED INTO EVIDENCE: Administrative Notice was taken of the Notice of Hearing packet and all of its documents contained therein.

_____________________________________________________________________

FINDINGS OF FACT

Pleasure Spas Inc (Respondent) is the holder of License Nos. 166025 and 201430 issued by the Arizona Registrar of Contractors (Registrar).

On or about December 12, 2022, Tad Johnson (Complainant) entered into a contract with Respondent for, among other things, the installation of polytube for the irrigation system (without connection), re-doing the front yard rocks, and adding decorative rock in the remaining yard.

On or about October 12, 2023, the Registrar received a Complaint against Respondent from Complainant alleging abandonment with respect to the project.

The Registrar assigned the complaint to Investigator John Smith. After a jobsite inspection, Investigator Smith 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 January 15, 2024.

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 reasons1, 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 Item 1: “Been paid in full Since July 2023 and no work has been completed since then. Fireplace is still not finished;”

Investigator’s Observations: Verified.

The fireplace is incomplete. There is no gas fire log currently installed.

The respondent acknowledged this still needs to be completed.

. . . . .

Complaint Item 2: “Irrigation lines were not installed properly;”

Investigator’s Observations: Verified.

Irrigation not complete: Irrigation lines not ran to tops of planter stands/structures. Sleeves are present; however, irrigation lines are incomplete.

The respondent acknowledged this still needs to be completed.

. . . . .

Complaint Item 3: “Rock for entire backyard has not been laid”

Investigator’s Observations: Verified.

Decorative rock is not installed. All areas of current bare dirt are to be covered with decorative rock.

The respondent acknowledged this still needs to be completed.

. . . . .

ADDITIONAL VIOLATIONS

In addition to the allegations in the complaint, the following violations were verified:

Elements of a Contract

Investigator’s Observations: As stated by the complainant, the respondent did not provide a copy of the contract.

Governing Rules:

A.R.S. § 32-1154(A)(12), Namely A.R.S. § 32-1158(A) Minimum Elements of a Contract.

A.R.S. § 32-1154(A)(12) Namely, A.R.S. § 32-1158(B): When a contractor and an owner sign a contract, the contractor shall provide the owner with a legible copy of all documents signed and a written and signed receipt for and in the true amount of any cash paid to the contractor by the owner.

A.R.S. § 32-1154(A)(12) Namely A.R.S. § 32-1158.01 Swimming pool; spa; construction contracts

REQUIRED CORRECTIVE ACTION: The respondent is to submit a copy of a current contract form that complies with A.R.S. § 32-1158 and § 32-1158.01

Display of License

Investigator’s Observations: The respondent’s business card does not include the respondent’s ROC number.

Governing Rule: A.R.S. § 32-1154(A)(12) Namely A.R.S. § 32-1124(B) Display of License

REQUIRED CORRECTIVE ACTION: The respondent is to submit documented compliance with A.R.S. § 32-1124

All errors contained in original.

After the deadline in the directive expired, Investigator Smith was notified no corrective work had been performed.

The Registrar issued a Citation against Respondent, charging possible violations of Ariz. Rev. Stat. § 32-1154(A)(3), namely Ariz. Admin. Code R4-9-108(A) and (B); Ariz. Rev. Stat. § 32-1154(A)(12), namely Ariz. Rev. Stat. § 32-1124(B), § 32-1158, and § 32-1158.01; and Ariz. Rev. Stat. § 32-1154(A)(22).

Investigator Smith testified consistently with his written directive. He further testified that while at the jobsite inspection, Respondent provided him a business card that lacked its ROC license number. Investigator Smith continued his testimony and stated that, on December 15, 2023, he sent Respondent a warning letter regarding his contract missing the required contract elements. Investigator Smith advised that Respondent never provided him a corrected contract. He further testified that Respondent acknowledged all of the issues and acknowledged that the issues were its responsibility. To that end, Investigator Smith asked Respondent for a deadline by which it believed it could comply with the written directive. Accordingly, Investigator Smith testified that he set the compliance deadline on January 15, 2024. Lastly, Investigator Smith testified that on January 16, 2024, he received a phone call from Complainant advising that the corrective work had never even started.

Complainant testified that Respondent broke ground in December 2022, and the work had not been completed to this day. He further stated that he paid Respondent, in full, in July 2023. Respondent finished the fireplace in September 2023 and once Respondent finished the structure, Respondent never returned. Complainant further testified that once the written directive was issued, he allowed Respondent on the property; however, Complainant testified that all Respondent did was send a person out to collect a rock sample and look at the polytube. Subsequent to that, approximately “2 hours before the completion date of January 15,” Complainant received a message from Respondent asking to come by to look at the polytube once again. Complainant advised Respondent at that time that if the work was not completed by the compliance deadline, he would move forward with “legal matters” and that Respondent would no longer be allowed on his property until all legal matters were settled.

Owen Brown, president and qualifying party, testified on behalf of Respondent. Mr. Brown testified that after the jobsite inspection, he and Iain MacInnes, project manager, headed back to Canada on personal matters. At that time, he did not understand that the written directive had to be completed before the January 15, 2024 date, and, in hindsight, realized that he should have communicated his issues to Investigator Smith. Mr. Brown further testified that the work itself would not take long to complete; however, after January 15, 2024 Respondent was no longer allowed on the premises.

Administrative notice is taken of Respondent’s prior License record on April 1, 2024. Such prior License record reflects that Respondent’s License No. 166025 was first issued on July 30, 2001 and is currently active. Such prior License record also reflects that there were 5 other open complaints, 1 prior disciplined complaint, and 3 prior resolved/settled complaints.

Additionally, Respondent’s License No. 201430 was noted to have been first issued on February 3, 2005 and is currently suspended due to lack of bond, as of March 5, 2024. Such prior License record also reflects that there were no open or prior complaints.

CONCLUSIONS OF LAW

This matter lies within the Registrar’s jurisdiction.

Complainant bears 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.”

Respondent’s suspended license does not deprive Complainant of his right to prosecute his Complaint or prevent the Registrar from determining the merits of the Complaint.

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 Ariz. Rev. Stat. § 32-1154(A)(3), namely Ariz. Admin. Code R4-9-108(A) and (B).

RECOMMENDED ORDER

Based on the foregoing, it is recommended that on the effective date of the Order, the Registrar shall suspend Respondent’s License Nos. 166025 and 201430 for a period of 5 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. § 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. § 32-1101(A)(7), unless Respondent tenders payment of any outstanding prior civil penalty.

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.

-54864001

001

-137160-45720000Done this day, April 18, 2024.

/s/ Amy M. Haley

Administrative Law Judge

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

Tom Cole, Director

Registrar of Contractors

Tad Johnson

953 S Grantham Ave

Vail, AZ 85641

[email redacted]

Pleasure Spas Inc

DBA: Pleasure Pools

2004 E Irvington Rd #186

Tucson, AZ 85714

[email redacted]

By: OAH Staff