ALJDEC decisions subject to certification as final

2023A-14342-CHC-ROC · Registrar of Contractors · 2024-07-16

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Karla Teran,

COMPLAINANT

Presidential Pools and Spas LLC

License No. ROC 319376,

RESPONDENT

No. 2023A-14342-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: July 1, 2024

APPEARANCES: Complainant Karla Teran appeared via Google Meet on her own behalf. Respondent Presidential Pools and Spas LLC was represented by Chris Hering and Mickell Summerhays who appeared via Google Meet.

ADMINISTRATIVE LAW JUDGE: Adam D. Stone

EXHIBITS ADMITTED INTO EVIDENCE: Complainant’s Exhibits 1-5, and Respondent’s Exhibits A-E were admitted into evidence.

_____________________________________________________________________

FINDINGS OF FACT

Presidential Pools and Spas LLC, (Respondent) is the holder of License No. 319376 issued by the Arizona Registrar of Contractors (Registrar).

On or about May 30, 2022, Karla Teran (Complainant) agreed to have Respondent construct a pool at her home in Marana, Arizona. The contracted amount was $83,507.93 and Complainant paid $83,507.93.

On or about December 18, 2023, the Registrar received a Complaint against Respondent from Complainant alleging poor work with respect to project.

The Registrar assigned the complaint to Investigator Aaron King. The jobsite inspection was performed on February 21, 2024.

Investigator King then issued a Written Directive on or about March 25, 2024, which provided in pertinent 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 April 15, 2024.

. . .

DIRECTIVE REQUIREMENTS

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

Complaint Item: #1- Unresolved continued pool leak over a year. They have continued to "patch" leaks and the pool continues to leak.

Investigator’s Observation: Jurisdiction confirmed, within 2 years since work stopped. Respondent did come to inspection. The Complainants stated that on the Saturday prior to our arrival they placed tape at the water level to indicate where the top of the water was at that time. There was a 3 inch drop in water level from where the tape was placed. This is a significant drop and more than would be expected in such a short period of time in cooler weather. There has been a multitude of leak detection attempts and one has been found in the past. There were documents of this uploaded to the complaint file in which a pipe was discovered broken and replaced. All indications at this point however lead to show that either the leak was not corrected or that this was not the only leak. The water level alone is concerning and indicates a significant and abnormal drop in water. Additionally, the Complainant further proved their complaint by providing documentation by the pool maintenance company showing that the chemicals they are placing into the pool are vanishing and that they are needing to add more. This is typical with water that is being removed and refilled by an auto fill with new water. Rather than the water stabilizing with the chemicals by the pool company, they are being reduced due to unknown reason and they are needing to continue to add abnormally more. All indications lead towards verifying that there remains a leak that has not been addressed. To ensure there are no water leaks from equipment or piping, workmanship standards require that all mechanical equipment and related components and piping should be air and water tight in the range of 1.5 times the normal operating pressure. For any leaks or indications that the components and piping are not, the contractor should make necessary repairs. The Respondent will need to identify the cause and correct by the appropriate means.

Governing Rule: Workmanship Rule: ARS §32-1154 (A) (3), namely R4-9-108, Poor work not performed in accordance with professional industry standards.

ITEMS NOT REQUIRING CORRECTION

The following complaint items require no action by the Respondent:

Complaint Item: #2- The pool heater has never worked correctly. They continue to figure out what is wrong and have not been able to fix that issue either.

Investigator’s Observation: Unverified. The Complainants discussed evidence they had in documenting that the pool heater was not functioning as designed. In discussing the heater, the Complainant discussed how they learned that their 7 columns drop to 3 and that anything under 4 is considered as bad. They explained that it takes 2 hours to heat the pool which they considered to be long. On site the Respondent was able to identify that the heater manufacturer states that the heater is designed to heat the pool 1 to 2 degrees an hour in the heating cycle although this was not confirmed. Additionally, the Respondent has the plumber for the pool on site who showd pics from his heater test. The pics appeared to have been taken at this location and by all means look to be this pool equipment. The videos show that the heater is operating within the normal ranges of a minimum of 4 columns or higher. There was not enough definitive evidence from either side to make a conclusive decision on the heater, therefore it remains unverified. No action is required by the Respondent.

Governing Rule: N/A

Complaint Item: #3- Presidential is rude if you question why their repairs are not correcting the issue. We have had the same issues with the pool since the day it was completed.

Investigator’s Observation: The ROC has no jurisdiction over good customer service, to include communication. This is the most common complaint, and while no corrective order can be given, the Respondent should consider the long term effect of this practice.

Governing Rule: N/A

(All errors contained in the original)

Investigator King did not conduct a Compliance Jobsite Inspection, however, issued notes regarding the same and noted the following in pertinent part:

Compliance Jobsite General Notes:

CJSI photos were not taken as no formal meeting took place.

CJSI audio was not recorded due to no inspection.

CJSI photos and audio cannot be uploaded to the file due to no inspection.

Compliance Findings:

Complaint Item: #1- Unresolved continued pool leak over a year. They have continued to "patch" leaks and the pool continues to leak.

Governing Rule: Workmanship Rule: ARS §32-1154 (A) (3), namely R4-9-108, Poor work not performed in accordance with professional industry standards.

NOT CORRECTED

Note:

Both the Complainant and the Respondent confirmed that no work was done on the pool, therefore no Compliance inspection was required.

Complaint Item: #1- The Respondent brought out their leak detection company who performed their leak detection test and found that there was no evidence of a continued leak. As they were tasked to repair a leak and cannot identify a leak, they submitted their findings as evidence of completion of work. The Complainant has submitted communication and photo evidence of their pool maintenance company adding 80 pounds of salt, stating salt accumulates and that that they had lost 100 parts per million from last week. This happens when new water enters the pool and replaces salt water, indicating there is a leak somewhere and the water is being replaced. A pool this size should not be losing and replacing water that fast. The leak evidence remains and no work was performed to repair it...

On April 19, 2024, 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) and (b); and A.R.S. § 32-1154(A)(22).

On or about May 1, 2024, Respondent submitted an Answer to the Registrar.

On or about May 22, 2024, a Notice of Hearing was issued setting a hearing on July 1, 2024, at the Office of Administrative Hearings, an independent state agency.

At hearing, Investigator King testified as to the Registrar’s involvement and the above timeline and findings from his inspections.

Investigator King testified that when he came to the jobsite, Complainant informed him that she had placed a piece of tape on the side of the pool on a Saturday, and when he came to the jobsite on Wednesday, Investigator King noticed that the water level was about three inches below the tape.

In addition, Investigator King testified that he was told that 80 pounds of salt were added to the pool and in his experience the only way to lose that much salt was due to a leak.

Investigator King testified further that while he received and looked at the report from PinPoint Leak Detectors (PinPoint) supplied by Respondent, he did not feel that this was enough to conclude that there was no leak, and therefore no corrective work to be performed. Also, at the conclusion of the Directive period, Complainant informed Investigator King that Respondent performed no corrective work and the leak was still present.

Complainant testified on her own behalf. She stated that prior to filing the complaint, Respondent had been patching leaks since October 2023, and fixed a leak near the pool light.

Further, Complainant testified that she has to continually add salt to the pool and is now on her third pool maintenance company.

Complainant also testified that she did not allow Respondent to inspect the pool once the Complaint was filed and before the jobsite inspection on February 21, 2024.

Respondent offered the testimony of Chris Munton, Shane Richardson and Seth Hedges.

Mr. Munton was Respondent’s Tucson area Construction Manager. He testified that the salt system installed in Complainant’s pool while not a unique system, does not operate the same in cold weather months as in summer months which can produce inaccurate level readings.

Further, Mr. Munton testified that PinPoint was out in November/December 2023, and they discovered a leak by the pool light. Mr. Munton testified that Respondent corrected the leak, and wanted to have PinPoint back out after December 7, 2023, to ensure there were no other leaks but that Complainant refused, instead wanting to wait for the Registrar’s inspection.

Finally, Mr. Munton testified that if PinPoint had found a leak during the Directive period, Respondent would have corrected the same.

Mr. Richardson was the Project Manager for Complainant’s project. He testified that all inspections were performed by the city and the permit was closed out. Mr. Richardson testified further that he was initially present with PinPoint during the April 3, 2024 test, and while he did not stay for the entire test, he believed the process took about 3 hours.

Mr. Hedges was a Locator for PinPoint, and performed the tests on April 3, 2024. Mr. Hedges testified that he ran extensive tests which included pressurizing the lines, hydro-phoning, and dye testing the previously repaired areas to determine leaks.

Mr. Hedges testified that every area passed his tests and demonstrated the same through photographs.

In addition, Mr. Hedges testified that just placing tape would not give an adequate representation of leaks as it would depend on what equipment was running in the pool. Further, Mr. Hedges testified that salt tests are likewise not very accurate as the probes must be properly cleaned and calibrated to ensure accurate results.

Administrative notice was taken of Respondent’s prior License record on July 16, 2024. Such prior License record reflected that Respondent’s License No. 319376 was first issued on April 17, 2018, and reflected that there was one open case, namely the present case, and three “resolved/settled cases”.

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 tribunal finds that based upon the preponderance of credible evidence, Respondent’s work was in conformity with the Registrar’s standards, and thus there was no violation of A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108(A), as without more information as to the “tape test” or other leak detection report, it would be hard to determine if there was a leak.

The evidence also established that once instructed to re-inspect the pool for leaks, Respondent promptly complied and had PinPoint do a full inspection and prepare a report. There was no contravening report or other credible testimony presented to demonstrate that the pool was still leaking. Therefore, because there were no leaks found, there was nothing to repair. Therefore, the tribunal finds that there was no 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 dismiss complaint 2023A-14342, and take no action against Respondent’s license.

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, July 16, 2024.

/s/ Adam D. Stone

Administrative Law Judge

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

Tom Cole, Director

Registrar of Contractors

Christopher L. Hering

[email redacted]

Karla Teran

[email redacted]

By: OAH Staff