ALJDEC - Licensing

2024A-00966-CHC-ROC · Registrar of Contractors · 2024-06-17

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Heath Vinyard ,

COMPLAINANT

v.

Pleasure Spas Inc

DBA: Pleasure Pools

License No. ROC 166025,

RESPONDENT

No. 2024A-00966-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: May 28, 2024

APPEARANCES: Complainant Heath Vinyard (Complainant) represented himself. Owen Brown represented Respondent Pleasure Spas Inc (Respondent).

ADMINISTRATIVE LAW JUDGE: Velva Moses-Thompson

_____________________________________________________________________

FINDINGS OF FACT

1. On or about September 18, 2023, Complainant and Respondent entered into a contract wherein Respondent would install a new pool at Complainant’s home for the amount of $84,063.98. Complainant paid Respondent $28,857.79 pursuant to the contract.

2. The contract did not include Respondent’s license number with the Arizona Registrar of Contractors (Registrar or ROC), Respondent’s business address, the estimated date of completion, contact information for the ROC, and information regarding Complainant’s right to file a complaint with the ROC. The contract did not include the required elements of a pool contract required under Arizona Revised Statutes (A.R.S.) § 32-1158.01(1) through (4).

3. On December 7, 2023, Complainant started work. On December 8, 2023, Respondent stopped work.

4. On or about January 24, 2024, Complainant filed a complaint with the Registrar alleging abandonment on the part of Respondent.

5. The complaint was assigned to Registrar Investigator John Smith.

6. On March 1, 2024, Investigator Smith conducted a job-site inspection. Investigator Smith made the following observations:

Current conditions on site:

• Excavation work has been performed.

• Mechanicals have not been started

• Rebar has not been started

• The project is not complete

The contract includes:

• Signatures of both parties dated 9/18/2023

• We expect the construction process to take between 3 to 6 months starting from the excavation phase.

As stated in the submitted complaint form:

• Work began December 7, 2023

• Work stopped December 8, 2023

As stated on the Finance Disbursement document:

• First payment “Completion of Excavation” has been paid

• Disbursement Amount $23,659.79

• Total Disbursed Amount (to date) $28,857.79 Per contract, the next payment is not due until “Completion of rebar”.

7. On March 6, 2024, the ROC issued a Directive to Respondent that 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 Friday, March 22, 2024.

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

Complaint Item 1: “Pool was dug and then nothing scheduled after. After repeated attempts to get the project moving, and all requested funds released, nothing has been scheduled and unable to get the project moving forward to completion. ”

Investigator’s Observations: Verified. Current conditions on site:

• Excavation work has been performed.

• Mechanicals have not been started

• Rebar has not been started

• The project is not complete

The contract includes:

• Signatures of both parties dated 9/18/2023

We expect the construction process to take between 3 to 6 months starting from the excavation phase. As stated in the submitted complaint form:

• Work began December 7, 2023

• Work stopped December 8, 2023 As stated on the Finance Disbursement document:

• First payment “Completion of Excavation” has been paid

• Disbursement Amount $23,659.79

• Total Disbursed Amount (to date) $28,857.79 Per contract, the next payment is not due until “Completion of rebar”.

Governing Rule: A.R.S. § 32-1154(A)(1): Abandonment of a contract or refusal to perform after submitting a bid on work without legal excuse for the abandonment or refusal. Governing Rule: A.R.S. § 32-1154(A)(3) – R4-9-108(b): Violation of any rule adopted by the registrar; Namely R 4-9-108(b): A contractor shall perform work in accordance with any applicable building codes...

8. Respondent failed to comply with the Directive by March 22, 2024.

9. On March 29, 2024, after the Directive expired, no permit could be obtained for the project. See the ROC’s administrative record, pg. 68.

10. On March 27, 2024, the ROC issue issued a Citation against Respondent’s license alleging that Respondent may have violated A.R.S. § 32-1154(A)(1), A.R.S. § 32-1154(A)(3) – R4-9-108(A) and (B), A.R.S. § 32-1154(A)(12), (A)22), A.R.S. § 32-1158, and A.R.S. § 32-1158.01.

11. Respondent filed a timely answer to the Citation.

12. The matter was referred to the Office of Administrative Hearings for an evidentiary hearing.

13. A hearing was held on May 28, 2024.

14. At hearing, Complainant testified on behalf of himself. Mr. Brown testified on behalf of Respondent. Investigator Smith testified regarding his investigation of the complaint. Investigator Smith testified consistently with his job-site inspection notes.

15. Complainant explained that Respondent did not complete the pool construction contract.

16. Mr. Brown is Respondent’s qualifying party. Mr. Brown stated that Respondent stopped work because Complainant did not pay Respondent.

17. Administrative notice is taken of Respondent’s prior License record on June 17, 2024. Such prior License record reflects that Respondent’s license number 166025

was first issued on July 30, 2001, and is active. Such prior License record also reflects that there are 13 open complaints against Respondent’s license. Such prior License record reflects that one complaint has resulted in discipline against Respondent’s license and three complaints were resolved or settled by Complainant. Respondent’s disciplinary history is considered an aggravating factor in the imposition of discipline.

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, 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 Administrative Law Judge may consider Registrar’s administrative

record. See A.A.C. § R4-9-118.

The preponderance of the evidence shows that Respondent did not perform

the work in a professional and workmanlike manner in violation of A.A.C. R4-9-108(A) and (B), and thereby of A.R.S. § 32-1154(A)(3).

5. The preponderance of the evidence shows that Respondent did not perform

the work in accordance with applicable building codes and professional industry standards, which is a violation of A.A.C. R4-9-108(B), and thereby of A.R.S. § 32-1154(A)(3).

6. The undisputed evidence established that Respondent’s contract did not include all of the minimum elements required for a pool construction contract pursuant to 32-1158 and A.R.S. § 32-1158.01, which is a violation of Ariz. Rev. Stat. section 32-1154(A)(12).

7. The preponderance of the evidence shows that Respondent failed to comply with the Registrar’s Directive 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 License No. 166025 issued to Pleasure Spas Inc for seven 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, June 17, 2024.

/s/ Velva Moses-Thompson

Administrative Law Judge

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

Tom Cole, Director

Registrar of Contractors

Heath Vinyard

[email redacted]

Pleasure Spas Inc

DBA: Pleasure Pools

[email redacted]

By: OAH Staff