ALJDEC - Licensing
2023A-12568-CHC-ROC · Registrar of Contractors · 2024-05-30
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
Hector Zepeda,
COMPLAINANT
v.
Arizona Pools & Design LLC
DBA: Arizona Outdoor Landscape & Design
License No. ROC 332472,
RESPONDENT
No. 2023A-12568-CHC-ROC
ADMINISTRATIVE LAW JUDGE DECISION
HEARING:
APPEARANCES: Complainant Hector Zepeda appeared via Google Meet. Antonio Medina appeared via Google Meet on behalf of Respondent Arizona Pools & Design LLC. Registrar of Contractors Investigator Gregory Johndrow appeared via Google Meet on behalf of the Arizona Registrar of Contractors.
ADMINISTRATIVE LAW JUDGE: Adam D. Stone
EXHIBITS ADMITTED INTO EVIDENCE:
_____________________________________________________________________
FINDINGS OF FACT
Arizona Pools & Design LLC. (Respondent) is the holder of License No. 332472 issued by the Arizona Registrar of Contractors (Registrar).
On or about August 19, 2022, Hecotr Zepeda (Complainant) agreed to have Respondent construct a pool at his residence in Tucson, Arizona. The contracted amount was $69,000.00.
On or about October 31, 2023, the Registrar received a Complaint against Respondent from Complainant alleging poor work with respect to project.
The Registrar assigned the complaint to Investigator Gregory Johndrow. The jobsite inspection was performed on February 7, 2024.
Investigator Johndrow then issued a written directive on or about February 14, 2024, 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 March 1, 2024.
. . .
DIRECTIVE REQUIREMENTS
You are directed to remedy the following violations by the appropriate means:
Complaint Item 4: “PLUMBING IS EXPOSED IN A AREA ON THE POOL”
Investigator’s Observations: Verified. An exposed plumbing line was observed outside of the pool on the spa side of the pool.
Governing Rule: A.R.S. § 32-1154 (A)(3) - R4-9-108(a): Violation of any rule adopted by the registrar; Namely R 4-9-108(a) A contractor shall perform work in a professional and workmanlike manner.
Complaint Item 5: “THE COPING IS SHARP AND UNSAFE IN ONE AREA AND NOT ROUNDED OFF AS I REQUESTED, THE TOP OF THE COPING IS FILTY AND STAINED”
Investigator’s Observations: Verified. One section of the coping was not rounded at the end where it finishes against the stack stone veneer next to the spa.
Governing Rule: A.R.S. § 32-1154 (A)(3) - R4-9-108(a): Violation of any rule adopted by the registrar; Namely R 4-9-108(a) A contractor shall perform work in a professional and workmanlike manner.
Complaint Item 6: “3 POOL LIGHTS ARE MISSING FROM WHAT WE ORIGINALLY AGREED TO”
Investigator’s Observations: Verified. Lights was not installed as specified on the contract.
Governing Rule: A.R.S. § 32-1154(A)(2)(a): Departure from or disregard of: (a) Plans or specifications...
Complaint Item 7: “400000 BTU GAS HEATER STILL NOT INSTALLED; JANDY PDA-PS4 AUTO PROGRAMER STILL NOT INSTALLED”
Investigator’s Observations: Verified. The heater and auto programmer are not installed as specified in the contract.
Governing Rule: A.R.S. § 32-1154(A)(2)(a): Departure from or disregard of: (a) Plans or specifications...
Complaint Item 11: “After further review of the contract that was sent to me from Arizona pools it shows that I was supposed to get a in floor cleaning system that was not done.”
Investigator’s Observations: Verified. The in floor cleaning system specified in the contract has not been installed.
Governing Rule: A.R.S. § 32-1154(A)(2)(a): Departure from or disregard of: (a) Plans or specifications...
Complaint Item 12: “The spa was supposed to have 8 jets and only 6 were installed.”
Investigator’s Observations: Verified. The contract specified 8 therapy jets for the spa, 6 jets were observed in the completed spa.
Governing Rule: A.R.S. § 32-1154(A)(2)(a): Departure from or disregard of: (a) Plans or specifications...
(All errors contained in the original)
On March 8, 2024, 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); A.R.S. § 32-1154(A)(12) - A.R.S. § 32-1158.01; and A.R.S. § 32-1154(A)(22).
On or about March 15, 2024, Respondent e-mailed an Answer to the Registrar.
On or about March 29, 2024, a Notice of Hearing was issued setting a hearing on May 15, 2024, at the Office of Administrative Hearings, an independent state agency.
At hearing, Investigator Johndrow testified as to the Registrar’s involvement and the above timeline.
Investigator Johndrow testified that Respondent failed to appear at the Jobsite Inspection.
Further, Investigator Johndrow testified that he did not perform a Compliance Jobsite Inspection because Complainant had informed him via e-mail, that no corrective work had been performed.
As to the Directive items, Investigator Johndrow testified that the exposed pluming, and the coping being sharp and not rounded off were workmanship violations. Further, Respondent failed to install 3 pool lights, the heater, the in-floor cleaning system and 2 additional jets per the plans and contract.
Investigator Johndrow testified further that the parties’ contract was not compliant with the statute as the contract did not contain the required items 1 through 4.
Complainant testified that the contract he had in his possession initially required three payments of 30$ and the last 10% at completion of the project and he acknowledged that he had yet to pay the remaining 10% balance. Too, Complainant testified that Respondent sent him the contract which Investigator Johndrow referenced in testimony and at the Jobsite Inspection.
Further, Complainant testified that he never changed his mind on the project, and almost immediately noticed an issue with the spillway. Also, Complainant testified that the coping was installed three different times because it was wrong, and to date it still is in the same incorrect status,
Antonio Medina testified that the extra two jets were not installed because Complainant kept changing his mind. Mr. Medina also testified that the heater had not been installed because Complainant had not fully paid on the contract.
Administrative notice was taken of Respondent’s prior License record on May 30, 2024. Such prior License record reflected that Respondent’s License No. 332472 was first issued on March 3, 2021, and reflected that there were two open cases, one of which was the present complaint, and two “resolved/settled cases”. Further, as of May 20, 2024, the license had been revoked.
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 preponderance of the evidence established three pool lights, 2 jets, the heating system and the in floor cleaning system were not install as agreed by the contract. Therefore, Complainant established that Respondent did not complete the project in a workmanlike manner in violation of A.R.S. § 32-1154(A)(2)(a).
The preponderance of the evidence established that Respondent’s work was not in conformity with the Registrar’s standards. An exposed plumbing line was observed outside on the spa side of the pools, and once section of the coping was not rounded off at the end. 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 preponderance of the evidence established that the contract provided by Respondent did not contain a bond provision, the procedures provided for by the registrar for resolution of claims, as well as a provision advising the Complainant of his rights. Therefore, Respondent was in violation of A.R.S. § 32-1154(A)(12) - A.R.S. § 32-1158.01.
The evidence established Respondent failed to complete the corrective work following the Directive being issued. Per the undisputed testimony, Respondent never attempted the corrective work. 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. 332472 for a period of ten 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 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.
It is further recommended that Respondent provide the Registrar with an updated sample contract which fully complies with A.R.S. § 32-1158.01 within 30 days of the final order. Failure to do so may result in an extended suspension.
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 30, 2024.
/s/ Adam D. Stone
Administrative Law Judge
Transmitted by either mail, e-mail, or facsimile to:
Tom Cole, Director
Registrar of Contractors
Hector Zepeda
[email redacted]
Arizona Pools & Design LLC
[email redacted]
Antonio Medina
[email redacted]
By: OAH Staff