ALJDEC - Licensing

2023A-14302-CHC-ROC · Registrar of Contractors · 2024-06-20

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Kristen Maskell,

COMPLAINANT

v.

Pleasure Spas Inc.

DBA: Pleasure Pools

License No. ROC 166025,

RESPONDENT

No. 2023A-14302-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: May 31, 2024

APPEARANCES: Complainant Kristen Maskell appeared on her own behalf. Owen Brown, Co-Owner and Qualifying Party, appeared on behalf of Respondent Pleasure Spas Inc. doing business as Pleasure Pools.

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

Pleasure Spas Inc. (Respondent) is the holder of License No. 166025 issued by the Arizona Registrar of Contractors (Registrar).

On or about May 9, 2023, Kristen Maskell (Complainant) entered into a contract with Respondent for, among other things, a swimming pool installation.

At some point during the construction, Complainant noted that the contract indicated two main drains were to be installed, but Respondent only installed one main drain. Respondent offered to provide Complainant with 80 sq. ft. of artificial turf in exchange for the missing main drain as it was too difficult to install another drain at that point of the construction.

On or about September 19, 2023, the parties executed a written change order in which Respondent agreed to install turf along the side of pool at no charge. The change order provided that the work would “be scheduled as soon as we are able to get it done.”

On or about December 15, 2023, the Registrar received a Complaint against Respondent from Complainant alleging abandonment with respect to the project.

The Registrar assigned the complaint to Investigator Ruben Perez. After a jobsite inspection, Investigator Perez 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 February 28, 2024.

. . . .

DIRECTIVE REQUIREMENTS

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

Complaint Item 1: Abandonment of change order (artificial grass)

Investigator’s Observation: The contract for this swimming pool was signed on 05/09/2023 and it was completed on or about 10/26/2023. A change order was done on 09/19/2023 for the installation of artificial grass. Artificial grass project was observed started however, not completed. Respondent to correct by appropriate means.

Governing Rule: Workmanship Rule: ARS 32-1154(A) (3) specifically to Rule 4-9-108

Following the issuance of the written directive, Respondent failed to complete the turf project. After the deadline in the directive expired, Investigator Perez was notified the corrective work had not been performed.

On or about March 12, 2024, Investigator Perez conducted a compliance jobsite inspection at which he noted that work had been started, but not completed.

The Registrar issued a Citation against Respondent, charging possible violations of A.R.S. § 32-1154(A)(1), A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108(A); and A.R.S. § 32-1154(A)(22).

Investigator Perez testified as to his observations of the project during the jobsite inspection and compliance jobsite inspection.

Complainant testified that Respondent offered to provide the artificial turf in exchange for the missing main drain. Complainant stated that Respondent was unresponsive to her attempts to schedule the work to be performed.

Mr. Brown testified that in late December 2023, Respondent determined that the fine print in the original contract did not require two main drains. Mr. Brown stated that, as a result, Respondent decided that the change order was not valid as it the artificial turf was offered to make up for the missing main drain that was not required. Mr. Brown also asserted that the change order provided the work would be performed when Respondent was able to do so and it had not been able to do the work since the change order was signed.

Administrative notice is taken of Respondent’s prior License record on June 20, 2024. Such prior License record reflects that Respondent’s License No. 166025 was first issued on July 30, 2001, and is active. Such prior License record also reflects that there were 13 open complaints, 3 resolved/settled complaints, and 1 complaint resulting in discipline 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 signed a change order for Complainant’s project and did not perform the work in the change order. Accordingly, Complainant established that Respondent abandoned the contract and failed to complete the project in a professional and workmanlike manner in violation of A.R.S. § 32-1154(A)(1) and A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108(A).

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. 166025 for a period of 10 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)(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, June 20, 2024.

/s/ Tammy L. Eigenheer

Administrative Law Judge

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

Tom Cole, Director

Registrar of Contractors

Pleasure Spas Inc.

DBA: Pleasure Pools

[email redacted]

Ruben Perez Sr.

[email redacted]

Kristen Maskell

[email redacted]

By: OAH Staff